Jrvlne 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

IRVINE 


St.  Cecilia  library 
Tustin.  California. 


KB 


A   TREATISE 


ON 


STATE  AND  FEDERAL  CONTROL 


OF 


PERSONS  AND  PROPERTY 


IN   THE 


UNITED    STATES 


CONSIDERED  FROM  BOTH  A  CIVIL  AND  CRIMINAL  STANDPOINT. 


CHRISTOPHER  G.  TIEDEMAN,  LL.D., 

Author  of  treatises  on  "  Real  Property,"   "Commercial  Paper,"  "  Sales, 
"  Municipal  Corporations,"  "  Bills  and  Notes,"  etc. 


VOL.    I. 


ST.  LOUIS: 
THE  F.  H.  THOMAS  LAW  BOOK  CO. 

1900. 


Entered  according  to  Act  of  Congress,  in  the  year  1900,  by 

C.  G,  TIEDEMAN, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


St.  Louis,  Mo.: 
Frets  of  Nixon- Jones  Printing  Co. 


THESE    PAGES    ARE   AFFECTIONATELY    INSCRIBED   TO 
MY   WIFE, 

HELEN  SEYMOUR  TIEDEMAN, 

WHOSE    SCRUPULOUS    REGARD    FOR   THE    RIGHTS   OF   OTHERS, 

AND    TENDER    SYMPATHY   FOR    THEIR   WEAKNESSES, 

HAVE    BEEN   MY   GUIDE   AND    INSPIRATION. 


(lii) 


PREFACE. 


In  the  days  when  popular  government  was  unknown,  and 
the  maxim  Quod  principi  placuit,  legis  habet  vigorem, 
seemed  to  be  the  fundamental  theory  of  all  law,  it  would 
have  been  idle  to  speak  of  limitations  upon  the  police  power 
of  government ;  for  there  were  none,  except  those  which 
are  imposed  by  the  finite  character  of  all  things  natural. 
Absolutism  existed  in  its  most  repulsive  form.  The  king 
ruled  by  divine  right,  and  obtaining  his  authority  from 
above  he  acknowledged  no  natural  rights  in  the  individual. 
If  it  was  his  pleasure  to  give  to  his  people  a  wide  room  for 
individual  activity,  the  subject  had  no  occasion  for  com- 
plaint. But  he  could  not  raise  any  effective  opposition  to 
the  pleasure  of  the  ruler,  if  he  should  see  fit  to  impose 
numerous  restrictions,  all  tending  to  oppress  the  weaker  for 
the  benefit  of  the  stronger. 

But  the  divine  right  of  kings  began  to  be  questioned, 
and  its  hold  on  the  public  mind  was  gradually  weakened, 
until,  finally,  it  was  repudiated  altogether,  and  the  opposite 
principle  substituted,  that  all  governmental  power  is  de- 
rived from  the  people  ;  and  instead  of  the  king  being  the 
vicegerent  of  God,  and  the  people  subjects  of  the  king,  the 
king  and  other  officers  of  the  government  were  the  servants 
of  the  people,  and  the  people  became  the  real  sovereign 
through  the  officials.  Vox  populi,  vox  Dei,  became  the 
popular  answer  to  all  complaints  of  the  individual  against 


Vf  PREFACE. 

the  encroachments  of  popular  government  upon  his  rights 
and  his  liberty.  Since  the  memories  of  the  oppressions  of 
the  privileged  classes  under  the  reign  of  kings  and  nobles 
were  still  fresh  in  the  minds  of  individuals  for  many  years 
after  popular  government  was  established  in  the  English- 
speaking  world,  content  with  the  enjoyment  of  their  own 
liberties,  there  was  no  marked  disposition  manifested  by 
the  majority  to  interfere  with  the  like  liberties  of  the  mi- 
nority. On  the  contrary  the  sphere  of  governmental  ac- 
tivity was  confined  within  the  smallest  limits  by  the 
popularization  of  the  so-called  laissez-faire  doctrine,  which 
denies  to  government  the  power  to  do  more  than  to  provide 
for  the  public  order  and  personal  security  by  the  preven- 
'\  tion  and  punishment  of  crimes  and  trespasses.  Under  the 
influence  of  this  doctrine,  the  encroachments  of  government 
upon  the  rights  and  liberties  of  the  individual  have  for  the 
past  century  been  comparatively  few.  But  the  political 
pendulum  is  again  swinging  in  the  opposite  direction,  and 
the  doctrine  of  governmental  inactivity  in  economical 
matters  is  attacked  daily  with  increasing  vehemence.  Gov- 
ernmental interference  is  proclaimed  and  demanded  every- 
where as  a  sufficient  panacea  for  every  social  evil  which 
threaten  the  prosperity  of  society.  Socialism,  Communism, 
and  Anarchism  are  rampant  throughout  the  civilized  world. 
The  State  is  called  on  to  protect  the  weak  against  the 
shrewdness  of  the  stronger,  to  determine  what  wages  a 
workman  shall  receive  for  his  labor,  and  how  many  hours 
daily  he  shall  labor.  Many  trades  and  occupations  are  be- 
ing prohibited  because  some  are  damaged  incidentally  by 
their  prosecution,  and  many  ordinary  pursuits  are  made 
government  monopolies.  The  demands  of  the  Socialists 


PREFACE.  Vll 

and  Communists  vary  in  degree  and  in  detail,  and  the  most 
extreme  of  them  insist  upon  the  assumption  by  government 
of  the  paternal  character  altogether,  abolishing  all  private 
property  in  land,  and  making  the  State  the  sole  possessor 
of  the  working  capital  of  the  nation. 

Contemplating  these  extraordinary  demands  of  the  great 
army  of  discontents,  and  their  apparent  power,  with  the 
growth  and  development  of  universal  suffrage,  to  enforce 
their  views  of  civil  polity  upon  the  civilized  world,  the  con- 
servative classes  stand  in  constant  fear  of  the  advent  of  an 
absolutism  more  tyrannical  and  more  unreasoning  than  any 
before  experienced  by  man,  the  absolutism  of  a  democratic 
majority. 

The  principal  object  of  the  present  work  is  to  demon- 
strate, by  a  detailed  discussion  of  the  constitutional  limita- 
tions upon  the  police  power  in  the  United  States,  that  under 
the  written  constitutions,  Federal  and  State,  democratic 
absolutism  is  impossible  in  this  country,  as  long  as  the 
popular  reverence  for  the  constitutions,  in  their  restrictions 
upon  governmental  activity,  is  nourished  and  sustained  by 
a  prompt  avoidance  by  the  courts  of  any  violations  of  their 
provisions,  in  word  or  in  spirit.  The  substantial  rights  of 
the  minority  are  shown  to  be  free  from  all  lawful  control 
or  interference  by  the  majority,  except  so  far  as  such  con- 
trol or  interference  may  be  necessary  to  prevent  injury  to 
others  in  the  enjoyment  of  their  rights.  The  police  power  of 
the  government  is  shown  to  be  confined  to  the  detailed  en- 
forcement of  the  legal  maxim,  sic  utere  tuo,  ut  alienum  non 
Icedas. 

If  the  author  succeeds  in  any  measure  in  his  attempt  to 
awaken  the  public  mind  to  a  full  appreciation  of  the  power 


viii  PREFACE. 

of  constitutional  limitations  to  protect  private  rights  against 
the  radical  experimentations  of  social  reformers,  he  will 
feel  that  he  has  been  amply  requited  for  his  labors  in  the 
cause  of  social  order  and  personal  liberty. 

C.  G.  T. 

UNIVERSITY  OF  THE  STATE  OF  MISSOURI,  COLUMBIA,  Mo., 
November  1, 1886. 


PREFACE  TO  THE  SECOND  EDITION. 


When,  fourteen  years  ago,  this  book  was  first  published, 
under  the  title  of  "  Limitations  of  Police  Power,"  the 
author's  most  exhaustive  search  of  all  branches  of  the  law 
produced  only  enough  material  to  make  a  book  of  one 
volume.  The  retrospect  of  the  subject  to-day,  —  in  the 
light  of  the  marvelous  development,  in  the  intervening 
years,  of  economic  and  industrial  combinations,  and  of  the 
demands  of  public  opinion  that  the  government,  in  the  ex- 
ercise of  its  police  power,  shall  restrain  and  subject  to  far- 
reaching  regulations,  not  only  every  such  combination  of 
labor  or  of  capital,  but  the  enjoyment  of  almost  every  per- 
sonal right,  —  inclines  one  to  the  thought  that  the  subject 
was  in  its  infancy  at  the  time  of  the  first  appearance  of  the 
book. 

In  the  preparation  of  the  present  edition,  I  have  endeav- 
ored to  corral  every  important  adjudication,  which  has  been 
made  by  the  State  and  Federal  courts,  on  the  various 
branches  of  the  subject ;  and  to  include  suggestive  argu- 
ments for  or  against  the  constitutionality  of  regulations  of 
personal  rights,  whether  the  courts  have  passed  upon  them 
or  not. 

It  has  been  gratifying  for  me  to  note  and  record  here, 
that  the  first  edition  of  the  book  has  been  quoted  by  the 
courts  with  approval  in  hundreds  of  cases;  and  that,  while 
some  of  my  opinions  and  arguments  are  still  in  opposition 
to  judicial  opinion,  the  number  of  such  cases  is  surprisingly 
small,  when  one  bears  in  mind  how  fruitful  the  subject  is 
with  opportunity  for  intelligent  differences  of  opinion. 

The  reader  will  find  important  additions  to  the  text  and 
citations  in  every  chapter  of  the  book.     But  the  most  im- 

(ix) 


X  PREFACE    TO    THE    SECOND    EDITION. 

portant  and  the  most  extensive  additions  have  been  made 
to  the  chapters  on  Property,  Corporations,  Federal  Police 
Power;  and,  especially,  to  the  chapter  on  Trades  and 
Occupations.  The  great  economic  war,  which  was  predicted 
in  the  preface  of  the  first  edition,  has  been  begun,  and  has 
been  increasing  in  intensity  and  scope  for  the  past 
ten  years,  making  profound  changes  in  the  eco- 
nomic conditions  of  the  people,  and  calling  for  new  legis- 
lative attempts  at  restriction,  regulation  and  suppression. 
In  the  ninth  chapter  of  the  book,  will  be  found  a  very 
full  and  complete  discussion  of  the  laws  and  the  cases, 
which  bear  upon  the  subjects  of  liberty  of  contract,  upon 
trades-unions  and  other  labor  combinations,  upon  the  law- 
fulness and  unlawfulness  of  the  different  labor  tactics, 
upon  industrial  trusts  and  trade  combinations,  and  upon 
monopolies,  both  private  and  governmental.  A  perusal  of 
the  fifteenth  chapter,  will  disclose  important  new  material 
which  unfolds  more  clearly  the  limitations  of  the  govern- 
mental control  of  corporate  franchises. 

It  is  the  common  observation  of  the  legal  profession  that 
the  interstate  commerce  clause  of  the  United  States 
Constitution  is  slowly  but  steadily,  under  the  adjudica- 
tions of  the  United  States  Supreme  Court,  extending  the 
jurisdiction  of  the  national  government  over  the  rights  of 
person  and  property,  which  at  an  earlier  day  in  our  national 
history  were  within  the  exclusive  jurisdiction  of  the  police 
power  of  the  respective  States.  The  constitutional  prin- 
ciples, which  are  involved  in  this  tendency  to  centralization, 
are  fully  presented  in  the  concluding  chapter. 

The  preparation  of  this  new  and  enlarged  edition  of  a 
book,  which  has  been  so  generously  received  and  com- 
mended by  the  profession,  has  been  a  labor  of  love;  and 
I  bespeak  for  it  a  continuance  of  that  distinguished 
consideration.  C.  G.  T. 

NEW  YORK  CITY, 

Aug.  15,  1900. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

SCOPE  OF  THE  GOVERNMENT  CONTROL  AND  REGULATION  OF 
PERSONAL  RIGHTS. 

SECTION  1.  Police  power  defined  and  explained. 

2.  The  legal  limitations  upon  police  power. 

3.  Construction  of  constitutional  limitations. 

4.  The  principal  constitutional  limitations. 

5.  Table  of  private  rights. 

CHAPTER  II. 

GOVERNMENT  REGULATION  OF  PERSONAL  SECURITY. 

SECTION  10.  Security  to  life. 

11.  Capital  punishment. 

12.  Security  to  limb  and  body. 

13.  Corporal  punishment. 

14.  Personal  chastisement  in  certain  relations. 

15.  Battery  in  self-defense. 

16.  Abortion. 

17.  Compulsory    submission    to    surgical  and  medical 

treatment. 

18.  Security  to  health  —  Legalized  nuisances. 

19.  Security  to  reputation  — Privileged  communications. 

20.  Privilege  of  legislators. 

21.  Privilege  in  judicial  proceedings. 

22.  Criticism  of  officers  and  candidates  for  office. 

23.  Publications  through  the  press. 

24.  Security  to  reputation  —  Malicious  prosecution. 

25.  Advice  of  counsel  —  How  far  a  defense. 

(xi) 


Xll  TABLE   OF   CONTENTS. 

CHAPTER  III. 

PERSONAL  LIBERTY. 
SECTION  26.  Personal  liberty  —  How  guaranteed. 

CHAPTER  IV. 

GOVERNMENT  CONTROL  OF  CRIMINAL  CLASSES. 

SECTION  27.  The  effect  of  crime  on  the  rights  of  the  criminal. 

28.  Due  process  of  law. 

29.  Bills  of  attainder. 

30.  Ex  post  facto  law. 

31.  Cruel  and  unusual  punishment  in  forfeiture  of  per- 

sonal liberty  and  rights  of  property. 

32.  Preliminary  confinement  to  answer  for  a  crime. 

33.  What  constitutes  a  lawful  arrest. 

34.  Arrest  without  warrant. 

35.  The  trial  of  the  accused. 

36.  The  trial  must  be  speedy. 

37.  The  trial  must  be  public. 

38.  Accused  entitled  to  counsel. 

39.  Indictment  by  grand  jury  or  by  information. 

40.  The  plea  of  defendant. 

41.  Trial  by  jury  —  Legal  jeopardy. 

42.  Bight  of  appeal. 

43.  Control  over  criminals  in  the  penitentiary. 
43a.  Convict  lease  system. 

CHAPTER  V. 

THE    CONTROL   OF   DANGEROUS   CLASSES,  OTHERWISE  THAN 
BY  CRIMINAL  PROSECUTION. 

SECTION  44.  Confinement  for  infectious  and  contagious  diseases. 

45.  Confinement  of  the  insane. 

46.  Control  of  the  insane  in  the  asylum. 

47.  Punishment  of  the  criminal  insane. 


TABLE    OF    CONTENTS.  Xlll 

SECTION  48.  Confinement  of  habitual  drunkards. 

49.  Police  control  of  vagrants. 

50.  Police  regulation  of  mendicancy. 

51.  Police  supervision  of  habitual  criminals. 

52.  State  control  of  minors. 

CHAPTER  VI. 

REGULATIONS    OF   THE   RIGHTS    OF  CITIZENSHIP  AND 
DOMICILE. 

SECTION  53.  Citizenship  and  domicile  distinguished. 

54.  Expatriation. 

55.  Naturalization. 

56.  Prohibition  of  emigration. 

57.  Compulsory  emigration. 

58.  Prohibition  of  immigration. 

59.  The  public  duties  of  a  citizen. 

CHAPTER  VII. 

STATE  REGULATION  OF   MORALITY  AND  RELIGION. 

SECTION  60.  Crime  and  vice   distinguished  —  Their   relation  to 
police  power. 

61.  Sumptuary  laws. 

62.  Church  and  State  —  Historical  synopsis. 

63.  Police  regulation  of  religion  —  Constitutional  re- 

strictions. 

64.  State  control  of  churches  and  congregations. 

65.  Religious  criticism  and  blasphemy  distinguished. 

66.  Permissible  limitations  upon  religious  worship. 

67.  Religious  discrimination  in  respect  to  admissibility 

of  testimony. 

68.  Sunday  laws. 

CHAPTER  VIII. 

FREEDOM  OF  SPEECH  AND    LIBERTY  OF  THE  PRESS. 
SECTION  81.  Police  supervision  prohibited  by  the  constitutions. 


Xiv  TABLE    OF    CONTENTS. 

CHAPTER  IX. 

REGULATION  OF  TRADES  AND  OCCUPATIONS. 

SECTION     85.  General  propositions. 

86.  Prohibition  as  to  certain  classes. 

87.  Police  regulations  of  skilled  trades  and  learned 

professions. 

88.  Regulation  of  practice  of  learned  professions. 

89.  Regulation  of  sale  of  certain  articles  of  merchan- 

dise. 

90.  Regulations  to  prevent  fraud. 

91.  Legal  tender  and  regulation  of  the  currency. 

92.  Free    coinage    of    silver    and    the    legal    tender 

decisions. 

93.  Legislative  restraint  of   importations  —  Protective 

tariffs. 

94.  Liberty  of  contract,  a  constitutional  right. 

95.  Compulsory  formation  of  business  relations. 

96.  Regulation  of  prices  and  charges. 

97.  Later  cases  on   regulating  prices  and  charges  — 

Regulations  must  be  reasonable  —  What  is  a  rea- 
sonable regulation,  a  judicial  question. 

98.  Police  regulation  of  the  labor  contract. 

99.  Regulation   of  wages   of  workmen  —  Compulsory 

insurance  and  membership  in  benefit  societies  — 
Release  from  liability  for  injuries  to  employees. 

100.  Regulation  of  wages  of  workmen  continued  — Time 

of  payment  —  Medium  of  payment  —  Fines  and 
deductions  for  imperfect  work  —  Mechanic's 
liens  and  exemption  of  wages. 

101.  Prohibition  of  employment  of  aliens  — Exportation 

of  laborers  —  Importation  of  laborers  under 
contract  —  Chinese  labor  —  Employers  compel- 
ling workmen  to  leave  union. 

102.  Regulating  hours  of  labor. 

103.  Regulations  of  factories,  mines,  and  workshops  — 

Sweatshops. 


TABLE   OF   CONTENTS.  XV 

SECTION  104.  Period  of  hiring  —  Breach  or  termination  of  labor 
contract  —  Compulsory  performance  of  labor 
contract  —  Requirement  of  notice  of  discharge — 
Employers  required  to  give  statement  of  reasons 
for  discharge. 

105.  Regulation  of  business  of  insurance. 

106.  Usury  and  interest  laws. 

107.  Prevention  of  speculation. 

108.  Prevention  of  combinations  in  restraint  of  trade. 

109.  A  combination  to  corner  the  market. 

109a.  Contracts   against   liability   for   negligence    pro- 
hibited. 

110.  Common   law  prohibition  of   combinations  in  re- 

straint of  trade,  restated. 

111.  Industrial  and  corporate  trusts,  as  combinations  in 

restraint  of  trade. 

112.  Modern  statutory  legislation  against  trade  com- 

binations, virtual  monopolies,  and  contracts  in 
restraint  of  trade. 

113.  Different  phases  of  the  application  of  anti-trust 

statutes  —  Factor's  system — Control  of  pat- 
ents —  Combinations  against  dishonest  debtors  — 
Agreements  to  sell  only  to  regular  dealers  — 
Combinations  of  employers  to  resist  combinations 
of  employees  —  Department  stores. 

114.  Labor  combinations  —  Trades  unions  —  Strikes. 

115.  Strikes,  continued,  and  Boycotts. 

116.  Wagering  contracts  prohibited. 

117.  Option  contracts,  when  illegal. 

118.  General  prohibition  of  contracts  on  the  ground  of 

public  policy. 

119.  Licenses. 

120.  Prohibition  of  occupations  in  general. 

121.  Prohibition  of  trade  in  vice  —  Social  evil,  gambling, 

horse-racing. 

122.  Prohibition  of  trades  for  the  prevention  of  fraud  — 

Adulterations  of  goods  —  Harmful  or  dangerous 
goods  —  Prohibition  of  sale  of  oleomargarine. 

123.  Prohibition  of  ticket  brokerage — Ticket- scalping 

prohibited  and  punished. 


XVI 


TABLE    OF    CONTENTS. 


SECTION   124.  Prohibition  of  sales  of  game  out  of  season. 

125.  Prohibition  of  the  liquor  trade. 

126.  Police  control  of  employments  in  respect  to  local- 

ity. 

127.  Monopolies  —  General  propositions. 

128.  Monopolies  and  exclusive  franchises  in  the  case  of 

railroads,  bridges,  ferries,  street  railways,  gas, 
water,  lighting,  telephone  and  telegraph  com- 
panies. 

129.  Patents  and  copyrights,  how  far  monopolies. 

130.  When  ordinary  occupations  may  be  made  exclusive 

monopolies. 

131.  National,  State  and  municipal  monopolies. 


CHAPTER    X. 

STATE  REGULATIONS  OF  EEAL  PROPERTY. 

SECTION  133.  What  is  meant  by  "  private  property  in  land?  " 

134.  Regulation  of  estates  —  Vested  rights. 

135.  Interests  of  expectancy. 

136.  Limitation  of  the  right  of  acquisition. 

137.  Regulation  of  the  right  of  alienation. 

137a.  The  right  of  testamentary  alienation  and  intestate 
succession  —  Taxation  of  inheritances. 

138.  Involuntary  alienation. 

139.  Eminent  domain. 

140.  Exercise  of  power  regulated  by  legislature. 

141.  Public  purpose,  what  is  a. 

142.  What  property  may  be  taken. 

143.  What  constitutes  a  taking. 

144.  Compensation,  how  ascertained. 

145.  Regulation  of  the  use  of  lands  —  What  is  a  nui- 

sance ? 

146.  What  is  a  nuisance,  a  judicial  question. 

147.  Regulation    of    unwholesome    and    objectionable 

trades. 

148.  Regulation  of  mines  and  mine  products. 

149.  Regulation  of  burial  grounds. 


TABLE    OF    CONTENTS.  XVI 1 

SECTION  150.  Laws  regulating  the  construction  of  wooden  build- 
ings. 

151.  Regulation  of  right  to  hunt  game  and  catch  fish. 

152.  Abatement  of  nuisances  —  Destruction  of  build- 

ings. 

153.  How  far  the  use  of  land  may  be  controlled  by  the 

requirement  of  license. 

154.  Improvement  of    property   at  the  expense,   and 

against  the  will,  of  the  owner. 

155.  Regulation  of  non-navigable  streams  —  Fisheries. 

156.  Conversion     of     non-navigable     into     navigable 

streams. 

157.  Statutory  liability  of  lessors  for  the  acts  of  lessees. 

158.  Search  warrants. 

159.  Quartering  soldiers  in  private  dwellings. 

160.  Taxation,  kinds  of. 

161.  Limitations  upon  legislative  authority. 


CHAPTER    XL 

STATE  REGULATION  OF  PERSONAL  PROPERTY. 

SECTION  162.  Laws  regulating  the  creation  and  acquisition  of 
interests  in  personal  property  —  Real  and  per- 
sonal property  herein  distinguished. 

163.  Statute   of  uses   and  rule   against  perpetuity,  as 

regulations  of  personal  property. 

164.  Regulation  and  prohibition  of  the  sale  of  personal 

property. 

165.  Laws  regulating  disposition  of  personal  property 

by  will. 

166.  Involuntary  alienation. 

167.  Control  of  property  by  guardian. 

168.  Destruction  of  personal  property  on   account  of 

illegal  use. 

169.  Destruction  of  personal  property  in  the  interest  of 

public  health. 

170.  Laws  regulating  use  of  personal  property. 

b 


XVill  TABLE    OF    CONTENTS. 

SECTION   171.  Prohibition  of  possession  of  certain  property. 

172.  Regulation  and  prohibition  of  the  manufacture  of 

certain  property. 

173.  Carrying  of  concealed  weapons  prohibited. 

174.  Miscellaneous  regulations  of  the  use  of  personal 

property. 

175.  Laws  regulating  the  use  and  keeping  of  domestic 

animals. 

176.  Keeping  of  dogs. 

177.  Laws  for  the  prevention  of  cruelty  to  animals. 

178.  Regulation  of  contracts  and  other  rights  of  action. 

179.  Regulation  of  ships  and  shipping. 


CHAPTER    XII. 

STATE    REGULATION     OF    THE    RELATION    OF  HUSBAND  AND 

WIFE. 

SECTION  180.  Marriage  a  natural  status,  subject  to  police  regu- 
lation. 

181.  Constitutional  limitations  upon  the  police  control 

of  marriages. 

182.  Distinction    between  natural    capacity   and  legal 

capacity. 

183.  Insanity  as  a  legal  incapacity. 

184.  The  disability  of  infancy  in  respect  to  marriage. 

185.  Consanguinity  and  affinity. 

186.  Constitutional  diseases. 

187.  Financial  condition  —  Poverty. 

188.  Differences  in  race  —  Miscegenation. 

189.  Polygamy     prohibited  —  Marriage     confined    to 

monogamy. 

190.  Marriage  indissoluble — Divorce. 

191.  Regulation  of  the  marriage  ceremony. 

192.  Wife  in  legal    subjection    to  the  husband  —  Its 

justification. 

193.  Husband's  control  of  wife's  property. 

194.  Legal  disabilities  of  married  women. 


TABLE    OF   CONTENTS. 


XIX 


CHAPTER    XIII. 

STATE    REGULATION    OF    THE    RELATION    OP    PARENT    AND 
CHILD,  AND  OF  GUARDIAN  AND  WARD. 

SECTION    195.  Original  character  of  the  relation  of  parent  and 
child  —  Its  political  aspect. 

196.  No  limitation  to  State  interference. 
196a.  People  v.  Turner. 

197.  Compulsory  education. 

198.  Child's  right  to  attend   public  school  —  Separate 

schools   for  negro  children  —  Expulsion    from 
school  must  be  for  a  reasonable  cause. 

199.  Parent's  duty  of  maintenance. 

200.  Child's  duty  to  support  indigent  parents. 

201.  Relation  of  guardian  and  ward  altogether  subject 

to  State  regulation. 

202.  Testamentary  guardians. 

CHAPTEK    XIV. 

POLICE  REGULATION  OF  THE  RELATION  OF  MASTER  AND 

SERVANT. 

SECTION  203.  Terms  "  master  and  servant  "  defined. 

204.  Relation  purely  voluntary. 

205.  Apprentices. 

206.  State  regulation  of  private  employments. 

207.  State  regulation  of  public  employments. 


CHAPTER  XV. 

POLICE  REGULATION  OF  CORPORATIONS. 

SECTION  208.  The  inviolability  of  the  charters  of   private  cor- 
porations. 

209.  State  control  of  corporations. 

210.  Freedom  from  State  control,  as  a  franchise. 

211.  Regulation  of  corporations  in  general. 


XX  TABLE   OF   CONTENTS. 

SECTION  212.  Laws  regulating  rates  and  charges  of  corporations. 

213.  Regulation  of  foreign  corporations. 

214.  Regulation  of  railroads. 

CHAPTER    XVI. 

THE  LOCATION  OF  POLICE  POWER  IN  THE  FEDERAL  SYSTEM 
OF  GOVERNMENT. 

SECTION  215.  The  United  States  government  one  of  enumerated 
powers. 

216.  Police  power  generally  resides  in  the  States. 

217.  Regulations  affecting  interstate  commerce. 

218.  License  tax  upon  drummers  and  peddlers. 

219.  Taxation  of  interstate  commerce. 

220.  State  regulation  and  prohibition  of  interstate  com- 

merce, particularly  in  articles  of  merchandise. 

221.  State  regulation  of  railroads   and   other  common 

carriers,  and  of  their  business,  when  an  interfer- 
ence with  interstate  commerce. 

222.  The  jurisdiction  of  anti-trust  laws,  national  and 

State,  as  affected  by  the  interstate  commerce 
clause. 

223.  Control  of  navigable  streams. 

224.  Regulation  of  harbors  —  Pilotage  laws. 

225.  National  and  State  quarantine  laws. 

226.  Regulation  of  weights  and  measures. 

227.  Counterfeiting  of  coins  and  currencies. 

228.  Regulation  of  the  sale  of  patented  articles. 

229.  War  and  rebellion. 

230.  Regulation  of  the  militia. 

231.  Taxation. 

232.  Regulation  of  offenses  against  the  laws  of  nations. 

233.  The  exercise  of  police  power  by  municipal  cor- 

porations. 


STATE  AND  FEDERAL  CONTROL 


OF 


PERSONS  AND  PROPERTY. 


CHAPTER    I. 

SCOPE  OF  THE  GOVERNMENT  CONTROL  AND  REGULATION  OF 
PERSONAL  RIGHTS. 

SECTION  1.  Police  power  defined  and  explained. 

2.  The  legal  limitations  upon  police  power. 

3.  Construction  of  constitutional  limitations. 

4.  The  principal  constitutional  limitations. 

5.  Table  of  private  rights. 

§   1 .  Police    power  —  Defined    and    explained.  —  The 

private  rights  of  the  individual,  apart  from  a  few  statutory 
rights,  which  when  compared  with  the  whole  body  of  private 
rights  are  insignificant  in  number,  do  not  rest  upon  the  man- 
date of  municipal  law  as  a  source.1  They  belong  to  man  in 
a  state  of  nature ;  they  are  natural  rights,  rights  recog- 

1  I  do  not  here  undertake  to  do  more  than  to  state  those  conceptions 
of  natural  rights  which  have  by  adjudications  been  embodied  in 
American  Constitutional  law.  The  scientific  criticisms  by  Austin 
and  others  of  the  theory  of  Natural  Rights,  will  be  found  properly 
recognized  and  discussed  in  the  author's  "Unwritten  Constitution  of 
the  United  States,"  and  in  his  "  Liberty  and  Equality  in  the  United 
States." 

§    1 


2          SCOPE  OF  THE  GOVERNMENT  CONTROL. 

nized  and  existing  in  the  law  of  reason.  But  the  individual, 
in  a  state  of  nature,  finds  in  the  enjoyment  of  his  own 
rights  that  he  transgresses  the  rights  of  others.  Nature  wars 
upon  nature,  when  subjected  to  no  spiritual  or  moral  re- 
straint. The  object  of  government  is  to  impose  that  degree 
of  restraint  upon  human  actions,  which  is  necessary  to  the 
uniform  and  reasonable  conservation  and  enjoyment  of 
private  rights.  Government  and  municipal  law  protect 
and  develop,  rather  than  create,  private  rights.  The 
conservation  of  private  rights  is  attained  by  the  imposition 
of  a  wholesome  restraint  upon  their  exercise,  such  a  re- 
straint as  will  prevent  the  infliction  of  injury  upon  others 
in  the  enjoyment  of  them  ;  it  involves  a  provision  of  means 
for  enforcing  the  legal  maxim,  which  enunciates  the  fun- 
damental rule  of  both  the  human  and  the  natural  law,  sic 
utere  tuo,  ut  alienum  non  Icedas.  The  power  of  the  gov- 
ernment to  impose  this  restraint  is  called  POLICE  POWER. 
By  this  **  general  police  power  of  the  State,  persons  and 
property  are  subjected  to  all  kinds  of  restraints  and  bur- 
dens, in  order  to  secure  the  general  comfort,  health  and 
prosperity  of  the  State;  of  the  perfect  right  in  the  legisla- 
ture to  do  which  ho  question  ever  was  or  upon  acknowl- 
edged general  principles  ever  can  be  made,  so  far  as 
natural  persons  are  concerned."1  Blackstone  defines  the 
police  power  to  be  "  the  due  regulation  and  domestic  order 
of  the  kingdom,  whereby  the  inhabitants  of  a  State,  like 
members  of  a  well-governed  family,  are  bound  to  conform 
their  general  behavior  to  the  rules  of  propriety,  good  neigh- 
borhood and  good  manners,  and  to  be  decent,  industrious 
and  inoffensive  in  their  respective  stations."  2  Judge  Cooley 
says:  3  '«  The  police  of  a  State,  in  a  comprehensive  sense, 
embraces  its  whole  system  of  internal  regulation,  by  which 
the  State  seeks  not  only  to  preserve  the  public  order  and  to 

1  Redfleld,  C.  J.,  in  Thorpe  ».  Rutland,  etc.,  R.  R.,  27  Vt.  140. 

2  4  Bl.  Com.  162. 

8  Cooley,  Const.  Lira.  572. 

§    1 


POLICE   POWER,  DEFINED    AND    EXPLAINED.  3 

prevent  offenses  against  the  State,  but  also  to  establish  for 
the  intercourse  of  citizens  with  citizens  those  rules  of  good 
manners  and  good  neighborhood  which  are  calculated  to  pre- 
vent a  conflict  of  rights,  and  to  insure  to  each  the  uninter- 
rupted enjoyment  of  his  own  so  far  as  it  is  reasonably 
consistent  with  a  like  enjoyment  of  rights  by  others."  1 
The  continental  jurists  include,  under  the  term  Police 

1  The  following  other  definitions  present  the  same  ideas  in  different 
language,  but  they  are  added,  ex  abundante  cautela,  with  the  hope  that 
they  may  assist  in  reaching  a  clear  conception  of  the  scope  of  the  police 
power.  "  The  police  power  of  a  State  is  co-extensive  with  self-protec- 
tion, and  is  not  inaptly  termed  '  the  law  of  overruling  necessity.'  It  is 
that  inherent  and  plenary  power  in  the  State,  which  enables  it  to  pro- 
hibit all  things  hurtful  to  the  comfort  and  welfare  of  society."  Lake- 
view  v.  Rose  Hill  Cemetery,  70  111.  192.  "With  the  legislature  the 
maxim  of  law  '  salus  populi  supremo,  lex,'1  should  not  be  disregarded.  It 
is  the  great  principle  on  which  the  statutes  for  the  security  of  the  peo- 
ple are  based.  It  is  the  foundation  of  criminal  law,  in  all  governments 
of  civilized  countries,  and  of  other  laws  conducive  to  the  safety  and  con- 
sequent happiness  of  the  people.  This  power  has  always  been  exer- 
cised, and  its  existence  cannot  be  denied.  How  far  the  provisions  of 
the  legislature  can  extend,  is  always  submitted  to  its  discretion,  pro- 
vided its  acts  do  not  go  beyond  the  great  principle  of  securing  the  public 
safety,  and  its  duty  to  provide  for  the  public  safety,  within  well  defined 
limits  and  with  discretion,  is  imperative.  *  *  *  All  laws  for  the 
protection  of  lives,  limbs,  health  and  quiet  of  the  person,  and  for  the 
security  of  all  property  within  the  State,  fall  within  this  general  power 
of  government."  State  v.  Noyes,  47  Me.  189.  "  There  is,  in  short,  no 
end  to  these  illustrations,  when  we  look  critically  into  the  police  of 
large  cities.  One  in  any  degree  familiar  with  this  subject  would  never 
question  a  right  depending  upon  invincible  necessity,  in  order  to  the 
maintenance  of  any  show  of  administrative  authority  among  the  class  of 
persons  with  which  the  city  police  have  to  do.  To  such  men  any  doubt 
of  the  right  to  subject  persons  and  property  to  such  regulations  as  pub- 
lic security  and  health  may  require,  regardless  of  mere  private  con- 
venience, looks  like  mere  badinage.  They  can  scarcely  regard  the 
objector  as  altogether  serious.  And,  generally,  these  doubts  in  regard 
to  the  extent  of  governmental  authority  come  from  those  who  have  had 
small  experience."  Hale  v.  Lawrence,  1  Zab.  714;  3  Zab.  590.  While  it 
is  true  that  a  small  experience  in  such  matters  is  calculated  to  increase 
one's  doubts  in  respect  to  the  exercise  of  the  power,  a  large  and  prac- 
tical experience  is  likely  to  make  one  recklessly  disregardful  of  private 
rights  and  constitutional  limitations. 

§1 


4         SCOPE  OF  THE  GOVERNMENT  CONTROL. 

Power,  not  only  those  restraints  upon  private  rights 
which  are  imposed  for  the  general  welfare  of  all,  but 
also  all  the  governmental  institutions,  which  are  estab- 
lished with  public  funds  for  the  better  promotion  of  the 
public  good,  and  the  alleviation  of  private  want  and  suf- 
fering. Thus  they  would  include  the  power  of  the 
government  to  expend  the  public  moneys  in  the  construc- 
tion and  repair  of  roads,  the  establishment  of  hospitals 
and  asylums  and  colleges,  in  short,  the  power  to  sup- 
plement the  results  of  individual  activity  with  what  in- 
dividual activity  cannot  accomplish.  "  The  governmental 
provision  for  the  public  security  and  welfare  in  its  daily 
necessities,  that  provision  which  establishes  the  needful  and 
necessary,  and  therefore  appears  as  a  bidding  and  forbid- 
ding power  of  the  State,  is  the  scope  and  character  of  the 
police."  l  But  in  the  present  connection,  as  may  be  gath- 
ered from  the  American  definitions  heretofore  given,  the 
term  must  be  confined  to  the  imposition  of  restraints  and 
burdens  upon  persons  and  property.  The  power  of  the 
government  to  embark  in  enterprises  of  public  charity  and 
benefit  can  only  be  limited  by  the  restrictions  upon  the 
power  of  taxation,  and  to  that  extent  alone  can  these  sub- 
jects in  American  law  be  said  to  fall  within  the  police  power 
of  the  State. 

It  is  to  be  observed,  therefore,  that  the  police  power  of 
the  government,  as  understood  in  the  constitutional  law  of 
the  United  States,  is  simply  the  power  of  the  government 
to  establish  provisions  for  the  enforcement  of  the  common 
as  well  as  civil-law  maxim,  sic  utere  tuo  ut  alienum  non 
Icedas.  **  This  police  power  of  the  State  extends  to  the  pro- 
tection of  the  lives,  limbs,  health,  comfort  and  quiet  of  all 
persons,  and  the  protection  of  all  property  within  the  State. 
According  to  the  maxim,  sic  utere  tuo  ut  alienum  non  Icedas, 

1  Bluntschli,  Mod.  Stat.,  vol.  II.,  p.  276.  See  v.  Mohl's  comprehen- 
sive discussion  of  the  scope  of  Police  Power  in  the  introductory  chapter 
to  his  Polizeiwissenschaft. 

§    1 


POLICE  POWER,  DEFINED  AND  EXPLAINED.        5 

it  being  of  universal  application,  it  must  of  course  be  within 
the  range  of  legislative  action  to  define  the  mode  and  man- 
ner in  which  every  one  may  eo  use  his  own  as  not  to  injure 
others."1  Any  law  which  goes  beyond  that  principle, 
which  undertakes  to  abolish  rights,  the  exercise  of  which 
does  not  involve  an  infringement  of  the  rights  of  others, 
or  to  limit  the  exercise  of  rights  beyond  what  is  necessary 
to  provide  for  the  public  welfare  and  the  general  security, 
cannot  be  included  in  the  police  power  of  the  government. 
It  is  a  governmental  usurpation,  and  violates  the  principles 
of  abstract  justice,  as  they  have  been  developed  under  our 
republican  institutions. 

In  Lawton  v.  Steele2the  Court  say:  «*  The  extent  and 
limitsof  what  is  known  as  the  police  power  have  been  a  fruit- 
ful subject  of  discussion  in  the  appellate  courts  of  nearly 
every  State  in  the  Union.  It  is  universally  conceded  to  in- 
clude everything  essential  to  the  public  safety,  health  and 
morals,  and  to  justify  the  destruction  or  abatement,  by  sum- 
mary proceedings,  of  whatever  may  be  regarded  as  a  public 
nuisance.  Under  this  power  it  has  been  held  that  the  State 
may  order  the  destruction  of  a  house  falling  to  decay  or  other- 
wise endangering  the  lives  of  passers-by;  the  demolition  of 
such  as  are  in  the  path  of  a  conflagration;  the  slaughter  of 
diseased  cattle ;  the  destruction  of  decayed  or  unwholesome 
food;  the  prohibition  of  wooden  buildings  in  cities;  the  reg- 
ulation of  railways  and  other  means  of  public  conveyance, 
and  of  interments  in  burial  grounds;  the  restriction  of  ob- 
jectionable trades  to  certain  localities;  the  compulsory  vac- 
cination of  children ;  the  confinement  of  the  insane  or  those 
afflicted  with  contagious  diseases ;  the  restraint  of  vagrants, 
beggars,  and  habitual  drunkards ;  the  suppression  of 
obscene  publications  and  houses  of  ill-fame  ;  and  the  pro- 
hibition of  gambling  houses  and  places  where  intoxicating 

1  Thorpe  v.  Rutland,  etc.,  R.  R.,  27  Vt.  160. 
1  152  U.  S.  133. 


6          SCOPE  OF  THE  GOVERNMENT  CONTROL. 

liquors  are  sold.  Beyond  this,  however,  the  State  may 
interfere  wherever  the  public  interests  demand  it,  and  in 
this  particular  a  large  discretion  is  necessarily  vested  in  the 
legislature  to  determine  not  only  what  the  interests  of  the 
public  require,  but  what  measures  are  necessary  for  the 
protection  of  such  interests.  To  justify  the  State  in  thus 
interposing  its  authority  in  behalf  of  the  public,  it  must 
appear,  first,  that  the  interests  of  the  public  generally,  as 
distinguished  from  those  of  a  particular  class,  require  such 
interference ;  and,  second,  that  the  means  are  reasonably 
necessary  for  the  accomplishment  of  the  purpose,  and  not 
unduly  oppressive  upon  individuals.  The  legislature  may 
not,  under  the  guise  of  protecting  the  public  interests, 
arbitrarily  interfere  with  private  business  or  impose  unusual 
and  unnecessary  restrictions  upon  lawful  occupations. 
In  other  words,  its  determination  as  to  what  is  a  proper 
exercise  of  its  police  powers,  is  not  final  or  conclusive,  but 
is  subject  to  the  supervision  of  the  courts." 

In  Ex  parte  Lentzsch,1  the  Court  say:  "  Upon  the  ques- 
tion thus  presented  of  the  proper  limits  of  the  police  power 
much  might  be  written,  and  much,  indeed,  will  have  to  be 
written,  ere  just  bounds  are  set  to  its  exercise.  But  in  this 
case  neither  time  permits  nor  necessity  demands  the  [its] 
consideration.  Still  it  may  be  suggested  in  passing  that 
our  government  was  not  designed  to  be  paternal  in  form. 
We  are  a  self-governing  people,  and  our  just  pride  is  that 
our  laws  are  made  by  us  as  well  as  for  us.  Every  individ- 
ual citizen  is  to  be  allowed  so  much  liberty  as  may  exist 
without  impairment  of  the  equal  rights  of  his  fellows.  Our 
institutions  are  founded  upon  the  conviction  that  we  are  not 
only  capable  of  self-government  as  a  community,  but,  what 
is  the  logical  necessity,  that  we  are  capable  to  a  great  ex- 
tent, of  individual  self-government.  If  this  convic- 
tion shall  prove  ill-founded,  we  have  built  our  house 

J  112  Cal.  468. 


THE    LEGAL    LIMITATIONS    UPON    POLICE    POWER.  7 

upon  sand.  The  spirit  of  a  system  such  as  ours  is 
therefore  at  total  variance  with  that  which,  more 
or  less  veiled,  still  shows  in  the  paternalism  of  other 
nations.  It  may  be  injurious  to  health  to  eat  bread  be- 
fore it  is  twenty-four  hours  old,  yet  it  would  strike  us  with 
surprise  to  see  the  legislature  making  a  crime  of  the  sale 
of  fresh  bread.  We  look  with  disfavor  upon  such  legisla- 
tion as  we  do  upon  the  enactment  of  sumptuary  laws.  We 
do  not  even  punish  a  man  for  his  vices,  unless  they  be  prac- 
ticed openly,  so  as  to  lead  to  the  spread  of  corruption,  or 
to  breaches  of  the  peace,  or  to  public  scandal.  In  brief, 
we  give  to  the  individual  the  utmost  possible  amount  of 
personal  liberty,  and,  with  that  guaranteed  to  him,  he  is 
treated  as  a  person  of  responsible  judgment,  not  as  a  child 
in  his  non-age,  and  is  left  free  to  work  out  his  destiny  as 
impulse,  education,  training,  heredity,  and  environment 
direct  him.  So,  while  the  police  power  is  one  whose 
proper  use  makes  most  potently  for  good,  in  its  undefined 
scope,  and  inordinate  exercise  lurks  no  small  danger  to  the 
republic  ;  for  the  difficulty  which  is  experienced  in  defin- 
ing its  just  limits  and  bounds  affords  a  temptation  to  the 
legislature  to  encroach  upon  the  rights  of  citizens  with 
experimental  laws,  none  the  less  dangerous  because  well 
meant."  1 

§  2.  The  legal  limitations  upon  police  power. —  This 
is  the  subject  of  the  present  work,  viz.  :  The  legal  limita- 
tions upon  the  police  power  of  American  governments, 
national  and  State.  Where  can  these  limitations  be  found, 
and  in  what  do  they  consist?  The  legislature  is  clearly  the 
department  of  the  government  which  can  and  does  exercise 
the  police  power,  and  consequently  in  the  limitations  upon 
the  legislative  power,  are  to  be  found  the  limitations  of  the 
police  power.  Whether  there  be  other  limitations  or  not, 

1  On  the  general  tendency  of  development  of  police  power  in  Illinois 
see  Eden  v.  People,  161  111.  296. 

§   2 


8          SCOPE  OF  THE  GOVERNMENT  CONTROL. 

the  most  important  and  the  most  clearly  defined  are  to  be 
found  in  the  national  and  State  constitutions.  Whenever 
an  act  of  the  legislature  contravenes  a  constitutional  pro- 
vision, it  is  void,  and  it  is  the  duty  of  the  courts  so  to  de- 
clare it,  and  refuse  to  enforce  it.  But  is  it  in  the  power  of 
the  judiciary  to  declare  an  act  of  the  legislature  void, 
because  it  violates  some  abstract  rule  of  justice,  when  there 
is  no  constitutional  prohibition?  Several  eminent  judges 
have  more  or  less  strongly  insisted  upon  the  doctrine  that 
the  authority  of  the  legislature  is  not  absolute  in  those 
cases  in  which  the  constitution  fails  to  impose  a  restriction  : 
that  in  no  case  can  a  law  be  valid,  which  violates  the  fun- 
damental principles  of  free  government,  and  infringes  upon 
the  original  rights  of  men,  and  some  of  these  judges  claim 
for  the  judiciary,  the  power  to  annul  such  an  enactment, 
and  to  forbid  its  enforcement.1  Judge  Chase  expresses 
himself  as  follows:  "  I  cannot  subscribe  to  the  omnipotence 
of  a  State  legislature,  or  that  it  is  absolute  and  without 
control,  although  its  authority  should  not  be  expressly  re- 
strained by  the  constitution  or  fundamental  law  of  the  State. 
The  people  of  the  United  States  erected  their  constitutions 
or  forms  of  government,  to  establish  justice,  to  promote 
the  general  welfare,  to  secure  the  blessings  of  liberty,  and 
to  protect  their  persons  and  property  from  violence.  The 
purposes  for  which  we  enter  into  society,  will  determine 
the  nature  and  terms  of  the  social  compact ;  and  as  they 
are  the  foundation  of  the  legislative  power,  they  will  decide 
what  are  the  proper  objects  of  it.  The  nature  and  ends  of 
legislative  power  will  limit  the  exercise  of  it.  This  fuuda- 

1  Judge  Chase  in  Calder  v.  Bull,  3  Ball.  386;  Judge  Story  in  Wil- 
kinson v.  Leland,  2  Pet.  657;  Judge  Bronson  in  Taylor  v.  Porter, 
4  Hill,  145;  Judge  Strong,  in  People  v.  Toynbec,  20  Barb.  218;  Judge 
Hosmer  in  Goshen  v.  Storlington,  4  Conn.  259;  Chancellor  Wal- 
worth  in  Varick  v.  Smith,  5  Paige,  137;  Judge  Spaulding  in  Griffith 
v.  Commissioners,  20  Ohio,  609;  Ch.  J.  Parker,  in  Ross'  Case,  2  Pick. 
169. 

§  2 


THE   LEGAL  LIMITATIONS   UPON   POLICE   POWER. 

mental  principle  flows  from  the  very  nature  of  our  free 
republican  governments,  that  no  man  should  be  com- 
pelled to  do  what  the  laws  do  not  require,  nor  to  refrain 
from  acts  which  the  laws  permit.  There  are  acts  which  the 
Federal  or  State  legislature  cannot  do,  without  exceeding 
their  authority.  There  are  certain  vital  principles  in  our 
free  republican  governments,  which  will  determine  and 
overrule  an  apparent  and  flagrant  abuse  of  legislative 
power;  as  to  authorize  manifest  injustice  by  positive  law, 
or  to  take  away  that  security  for  personal  liberty  or  private 
property  for  the  protection  whereof  the  government  was 
established.  An  act  of  the  legislature  (for  I  cannot  call  it 
a  law),  contrary  to  the  great  first  principle  of  the  social 
compact,  cannot  be  considered  a  rightful  exercise  of  legis- 
lative authority.  The  obligation  of  a  law  in  governments, 
established  on  express  compact  and  on  republican  princi- 
ples, must  be  determined  by  the  nature  of  the  power  on 
which  it  is  founded.  *  *  *  The  legislature  may  enjoin, 
permit,  forbid  and  punish  ;  they  may  declare  new  crimes, 
and  establish  rules  of  conduct  for  all  its  citizens  in  future 
cases;  they  may  command  what  is  right,  and  prohibit  what 
is  wrong,  but  they  cannot  change  innocence  into  guilt,  or 
punish  innocence  as  a  crime  ;  or  violate  the  right  of  an 
antecedent  lawful  private  contract,  or  the  right  of  private 
property.  To  maintain  that  our  Federal  or  State  legisla- 
ture possesses  such  powers,  if  they  had  not  been  expressly 
restrained,  would  in  my  opinion  be  a  political  heresy,  al- 
together inadmissible  in  our  free  republican  governments." 
But  notwithstanding  the  opinionsof  these  eminently  respect- 
able judges,  the  current  of  authority,  as  well  as  substan- 
tial constitutional  reasoning,  is  decidedly  opposed  to  the 
doctrine.  It  may  now  be  considered  as  an  established 
priiu  iple  of  American  law  that  the  courts,  in  the  perform- 
ance of  their  duty  to  confine  the  legislative  department 
within  the  constitutional  limits  of  its  power,  cannot 
nullify  and  avoid  a  law,  simply  because  it  conflicts  with  the 

§  3 


10         SCOPE  OF  THE  GOVERNMENT  CONTROL. 

judicial  notions  of  natural  right  or  morality,  or  abstract 
justice."  l 

1  "  The  question  whether  the  act  under  consideration  is  a  valid  exercise 
of  legislative  power  is  to  be  determined  solely  by  reference  to  constitu- 
tional restraints  and  prohibitions.  The  legislative  power  has  no  other 
limitation.  If  an  act  should  stand  when  brought  to  the  test  of  the  con- 
stitution, the  question  of  its  validity  is  at  an  end,  and  neither  the  execu- 
tive nor  judicial  department  of  the  government  can  refuse  to  recognize 
or  enforce  it.  The  theory,  that  laws  may  be  declared  void  when  deemed 
to  be  opposed  to  natural  justice  and  equity,  although  they  do  not  violate 
any  constitutional  provision,  has  some  support  in  the  dicta  of  learned 
judges,  but  has  not  been  approved,  so  far  as  we  know,  by  any  authoritative 
adjudication,  and  is  repudiated  by  numerous  authorities.  Indeed,  under 
the  broad  and  liberal  interpretation  now  given  to  constitutional  guaran- 
ties, there  can  be  no  violation  of  fundamental  rights,  which  will  not  fall 
within  the  express  or  implied  prohibition  and  restraints  of  the  constitution 
and  it  is  unnecessary  to  seek  for  principles  outside  of  the  constitution, 
under  which  legislation  may  be  condemned."  Bertholf  v.  O'Reilly,  74 
N.  Y.  509.  "  Defendant  insists  that  we  should  pronounce  the  law  now  in 
question  to  be  void,  on  the  ground  that  it  is  opposed  to  natural  right  and 
the  fundamental  principles  of  civil  liberty.  We  are  by  no  means  prepared 
to  accede  to  the  doctrine  involved  in  this  claim,  that  under  a  written  con- 
stitution like  ours,  in  which  the  three  great  departments  of  government, 
the  executive,  legislative  and  judicial,  are  confided  to  distinct  bodies  of 
magistracy,  the  powers  of  each  of  which  are  expressly  confined  to  its  own 
proper  department,  and  in  which  the  powers  of  each  are  unlimited,  in  its 
appropriate  sphere,  except  so  far  as  they  are  abridged  by  the  constitution 
itself,  it  is  competent  for  the  judicial  department  to  deprive  the  legisla- 
ture of  powers  which  they  are  not  restricted  from  exercising  by  that 
instrument.  It  would  seem  to  be  sufficient  to  prevent  us  from  thus  inter- 
posing, that  the  power  exercised  by  the  legislature  is  properly  legislative 
in  its  character,  which  is  unquestionably  the  case  with  respect  to  the  law 
we  have  been  considering,  and  that  the  consideration  contains  no  restric- 
tions upon  its  exercise  in  regard  to  the  subject  of  it."  State  v.  Wheeler, 
25  Conn.  290.  See,  also,  Butler  v.  Palmer,  1  Hill,  324;  Cochran  v.  Van 
Surley,  20  Wend.  380;  Grant  v.  Courten,  24  Barb.  232;  Benson  v.  Mayor, 
24  Barb.  248,  252;  Wynehamer  v.  People,  13  N.  Y.  390;  Town  of  Guilford 
v.  Supervisors,  13  N.  Y.  143;  Sharpless  v.  Mayor,  21  Pa.  St.  147;  Bennett 
v.  Boggs,  1  Bald.  74;  Doe  v.  Douglass,  8  Blackf.  10;  State  v.  Clottu,  33 
Incl.  409;  Stein  v.  Mayor,  24  Ala.  614;  Dorman  v.  State,  34  Ala.  232;  Bos- 
ton v.  Cummings,  16  Ga.  102;  Hamilton  v.  St.  Louis  Co.,  15  Mo.  23; 
Powell  v.  Com.,  114  Pa.  St.  265;  Reeves  ».  Corning,  51  Fed.  774;  Sink- 
ing Fund  Cases,  99  U.  S.  700,  718.  "Every  possible  presumption  is  in 
lavor  of  the  validity  of  a  statute,  and  this  continues  until  the  contrary 
is  shown  beyond  a  rational  doubt.  One  branch  of  the  government  can- 

§  2 


THE   LEGAL   LIMITATIONS   UPON    POLICE    POWER.  11 

While  it  is  true  that  the  courts  have  no  authority  to 
override  the  legislative  judgment  on  the  question  of  expedi- 
ency or  abstract  justice  in  the  enactment  of  a  law,  and  if  a 
case,  arising  under  the  statute,  should  come  up  before 
them  for  adjudication,  they  are  obliged  by  their  official  oaths 
to  enforce  the  statute  notwithstanding  it  offends  the  com- 
monest principles  of  justice,  it  is  nevertheless  true  that  a 
law  which  does  not  conform  to  the  fundamental  principles  of 
free  government  and  natural  justice  and  morality,  will  prove 
ineffectual  and  will  become  a  dead  letter.  No  law  can  be 
enforced,  particularly  in  a  country  governed  directly  by  the 
popular  will,  which  does  not  receive  the  moral  and  active 
support  of  a  large  majority  of  the  people  ;  and  a  law,  which 
violates  reason  and  offends  against  the  prevalent  conceptions 
of  right  and  justice,  will  be  deprived  of  the  power  neces- 
sary to  secure  its  enforcement.  The  passage  of  such  stat- 
utes, however  beneficent  may  be  the  immediate  object 
of  them,  will  not  only  fail  of  attaining  the  particular  end 
in  view,  but  it  tends  on  the  one  hand  to  create  in  those 
who  are  likely  to  violate  them  a  contempt  for  the  whole 
body  of  restrictive  laws,  and  on  the  other  hand,  to  inspire 
in  those,  from  whom  the  necessary  moral  support  is  to  be 
expected,  a  fear  and  distrust,  sometimes  hate,  of  legal 
restraint  which  is  yery  destructive  of  their  practical  value. 
And  such  is  particularly  the  case  with  police  regulations. 
When  confined  within  their  proper  limits,  viz. :  to  compel 
every  one  to  so  use  his  own  and  so  conduct  himself 
as  not  to  injure  his  neighbor  or  infringe  upon  his  rights, 
police  regulations  should,  and  usually  would,  receive  in  a 
reasonably  healthy  community  the  enthusiastic  support  of 
the  entire  population.  There  have  been,  however,  so  many 

not  encroach  on  the  domain  of  another  without  danger.  The  safety  of 
our  institutions  depends  in  no  small  degree  on  a  strict  observance  of  this 
salutary  rule."  See,  also,  Fletcher  v.  Peck,  6  Cranch,  87,  128;  Dart- 
mouth College  v.  Woodward,  4  Wheat.  518, 625;  Livingston  t?.  Darling- 
ton, 101  U.  S.  407. 

§   2 


12        SCOPE  OF  THE  GOVERNMENT  CONTROL. 

unjustifiable  limitations  imposed  upon  private  rights  and 
personal  liberty,  sumptuary  laws,  and  laws  for  the  correc- 
tion of  personal  vice,  laws  which  have  in  view  the  moral 
and  religious  elevation  of  the  individual  against  his  will, 
and  sometimes  in  opposition  to  the  dictates  of  his  con- 
science (all  of  which  objects,  however  beneficent  they  may 
be,  do  not  come  within  the  sphere  of  the  governmental 
activity),  that  the  modern  world  looks  with  distrust  upon 
any  exercise  of  police  power;  and  however  justifiable,  rea- 
sonable and  necessary  to  the  general  welfare  may  be  a  par- 
ticular police  regulation,  it  often  meets  with  a  determined 
opposition,  and  oftener  with  a  death-dealing  apathy  on  the 
part  of  those  who  are  usually  law-abiding  citizens  and 
active  supporters  of  the  law.  Goethe  makes  Mephistoph- 
eles  give  the  cause  of  this  opposition  in  the  following 
expressive  language :  — 

"  Ich  weisz  mich  trefflich  mit  der  Polizei 

Doch  mit  dem  Blutbann  schlecht  mich  abzufinden," 

which,  roughly  translated,  means,  "  I  can  get  along  very 
well  with  the  police,  but  badly  with  the  hereditary  monop- 
oly." (Blutbann.)1 

But  these  are  considerations,  which  can  alone  be  addressed 
to  the  legislative  department  of  the  government.  If  an 
unwise  law  has  been  enacted,  which  does  not  infringe  upon 
any  constitutional  limitation,  the  only  remedy  is  an  appeal 
to  the  people  directly,  or  through  their  representatives,  to 
repeal  the  law.  The  courts  have  no  authority  to  interpose. 

§  3.   Construction  of  constitutional  limitations. — But 

although  these  fundamental  principles  of  natural  right  and 

1  Reference  is  here  made  to  those  numerous  monopolies,  created  In 
various  industries  for  the  benefit  of  certain  powerful  families  and  made 
hereditary,  which  proved  beneficial  to  their  possessors,  while  they  were 
correspondingly  oppressive  to  the  poorer  classes.  This  was  one  of  the 
crying  evils  of  the  old  French  civilization  which  led  up  to  the  Revo- 
lution. 

§    3 


CONSTRUCTION   OF   CONSTITUTIONAL   LIMITATIONS.         13 

justice  cannot,  in  themselves,  furnish  any  legal  restrictions 
upon  the  governmental  exercise  of  police  power,  in  the 
absence  of  express  or  implied  constitutional  limitations, 
yet  they  play  an  important  part  in  determining  the  exact 
scope  and  extent  of  the  constitutional  limitations.  Wher- 
ever by  reasonable  construction  the  constitutional  limitation 
can  be  made  to  avoid  an  unrighteous  exercise  of  police 
power,  that  construction  will  be  upheld,  notwithstanding 
the  strict  letter  of  the  constitution  does  not  prohibit  the 
exercise  of  such  a  power.  The  unwritten  law  of  this 
country  is  in  the  main  against  the  exercise  of  police  power, 
and  the  restrictions  and  burdens,  imposed  upon  persons 
and  private  property  by  police  regulations,  are  jealously 
watched  and  scrutinized.  "  The  main  guaranty  of  private 
rights  against  unjust  legislation  is  found  in  that  memorable 
clause  in  the  bill  of  rights,  that  no  man  shall  be  deprived 
of  life,  liberty  or  property,  without  due  process  of  law. 
This  guaranty  is  not  construed  in  any  narrow  or  technical 
sense.  The  right  to  life  may  be  invaded  without  its  de- 
struction. One  may  be  deprived  of  his  liberty  in  a  consti- 
tutional sense  without  putting  his  person  in  confinement. 
Property  may  be  taken  without  manual  interference  there- 
with, or  its  physical  destruction.  The  right  to  life  includes 
the  right  of  the  individual  to  his  body  in  its  completeness 
and  without  its  dismemberment,  the  right  to  liberty,  the 
right  to  exercise  his  faculties  and  to  follow  a  lawful  avoca- 
tion for  the  support  of  life,  the  right  of  property,  the  right 
to  acquire  property  and  enjoy  it  in  any  way  consistent 
with  the  equal  rights  of  others  and  the  just  exactions  and 
demands  of  the  State."  1 

In  a  late  case  2  the  Supreme  Court  expresses  itself  as 
follows:  "  The  Fourteenth  Amendment  is  not  confined  to 
the  protection  of  citizens."  It  says :  "  Nor  shall  any  State 

1  Bertholf  v.  O'Reilly,  74  N.  Y.  509 

2  Yick  Wo  v.  Hopkins,  118  U.  S.  356. 

§   3 


14         SCOPE  OF  THE  GOVERNMENT  CONTROL. 

deprive  any  person  of  life,  liberty  or  property  without  clue 
process  of  law  ;  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws.  These  provisions  are 
universal  in  their  application,  to  all  persons  within  the 
territorial  jurisdiction,  without  regard  to  any  differences  of 
race,  of  color,  or  of  nationality ;  and  the  equal  protection 
of  the  laws  is  a  pledge  of  the  protection  of  equal  laws." 
*********** 

««  When  we  consider  the  nature  and  theory  of  our  insti- 
tutions of  governments,  the  principles  upon  which  they  are 
supposed  to  rest  and  review  the  history  of  their  develop- 
ment, we  are  constrained  to  conclude  that  they  do  not 
mean  to  leave  room  for  the  play  and  action  of  purely 
personal  and  arbitrary  power.  Sovereignty  itself  is, 
of  course,  not  subject  to  law,  for  it  is  the  author 
and  source  of  law  ;  but  in  our  system,  while  sovereign 
powers  are  delegated  to  the  agencies  of  government, 
sovereignty  itself  remains  with  the  people,  by  whom  and 
for  whom  all  government  exists  and  acts.  And  the  law  is 
the  definition  and  limitation  of  power.  It  is,  indeed,  quite 
true,  that  there  must  always  be  lodged  somewhere,  and  in 
some  person  or  body,  the  authority  of  final  decision;  and 
in  many  cases  of  mere  administration  the  responsibility  is 
purely  political,  no  appeal  lying  except  to  the  ultimate 
tribunal  of  the  public  judgment,  exercised  either  in  the 
pressure  of  public  opinion  or  by  means  of  the  suffrage. 
But  the  fundamental  rights  to  life,  liberty  and  the  pursuit 
of  happiness,  considered  as  individual  possessions,  are 
secured  by  those  maxims  of  constitutional  law  which  are 
the  monuments  showing  the  victorious  progress  of  the 
race  in  securing  to  men  the  blessings  of  civilization  under 
the  reign  of  just  and  equal  laws,  so  that,  in  the  famous 
language  of  the  Massachusetts  Bill  of  Rights,  the  govern- 
ment of  the  commonwealth  '  may  be  a  government  of 
laws  and  not  of  men.'  For  the  very  idea  that  one  man 
may  be  compelled  to  hold  his  life,  or  the  means  of  living, 
§  3 


CONSTRUCTION   OF   CONSTITUTIONAL   LIMITATIONS.        15 

or  any  material  right  essential  to  the  enjoyment  of  life,  at 
the  mere  will  of  another,  seems  to  be  intolerable  in  any 
country,  where  freedom  prevails,  as  being  the  essence  of 
slavery  itself." 

In  searching  for  constitutional  restrictions  upon  police 
power,  not  only  may  resort  be  had  to  those  plain,  exact  and 
explicit  provisions  of  the  constitution,  but  those  general 
clauses,  which  have  acquired  the  name  of  "  glittering  gen- 
eralities," may  also  be  appealed  to  as  containing  the  germ 
of  constitutional  limitation,  at  least  in  those  cases  in  which 
there  is  a  clearly  unjustifiable  violation  of  private  right 
Thus,  almost  all  of  the  State  constitutions  have,  incor- 
porated in  their  bills  of  rights,  the  clause  of  the  American 
Declaration  of  Independence  that  all  men  "  are  endowed  by 
their  Creator  with  certain  inalienable  rights  ;  that  among 
these  are  life,  liberty  and  the  pursuit  of  happiness."  If, 
for  example,  a  law  should  be  enacted,  which  prohibited  the 
prosecution  of  some  employment  which  did  not  involve  the 
infliction  of  injury  upon  others,  or  which  restricts  the 
liberty  of  the  citizen  unnecessarily,  and  in  such  a  manner 
that  it  did  not  violate  any  specific  provision  of  the  consti- 
tution, it  may  be  held  invalid,  because  in  the  one  case  it 
interfered  with  the  inalienable  right  of  property,  and  in 
the  other  case  it  infringed  upon  the  natural  right  to  life 
and  liberty.  '*  There  is  living  power  enough  in  those 
abstractions  of  the  State  constitutions,  which  have  hereto- 
fore been  regarded  as  mere  'glittering  generalities,'  to 
enable  the  courts  to  enforce  them  against  the  enactments  of 
the  Legislature,  and  thus  declare  that  all  men  are  not  only 
created  free  and  equal,  but  remain  so,  and  may  enjoy  life 
and  pursue  happiness  in  their  own  way,  provided  they  do  not 
interfere  with  the  freedom  of  other  men  in  the  pursuit  of  the 
same  objects."1  This  is  a  novel  doctrine,  and  one  which 

1  Judge  Redfleld's  annotation  to  People  v.  Turner,  55  111.  280;  10  Am. 
Law  Reg.  (N.  8.)  372.    At  a  very  early  day,  before  the  adoption  of  the 

§  3 


16         SCOPE  OF  THE  GOVERNMENT  CONTROL. 

perhapsis  as  liable  togive  rise  to  dangerous  encroachments  by 
the  judiciary  upon  the  sphere  and  powers  of  the  legislature, 
as  the  doctrine  that  a  law  is  invalid  which  violates  abstract 
principles  of  justice.  If  it  be  recognized  as  an  established 
rule  of  constitutional  law,  it  must  certainly  be  confined  in 
its  application  to  clear  cases  of  natural  injustice.  Wher- 
ever there  is  any  doubt  as  to  the  legitimate  character  of 
legislation,  it  should  be  solved  in  favor  of  the  power  of  the 
legislature  to  make  the  enactment.  In  all  cases  the  courts 
should  proceed  with  caution  in  the  enforcement  of  this  most 
elastic  constitutional  provision. 

While  we  find  a  tendency  in  one  direction  to  stretch  the 
constitutional  restrictions  over  a  great  many  cases  of  legisla- 
tion, which  would  not  fall  within  the  strict  letter  of  the  con- 
stitution, in  order  that  due  force  and  effect  may  be  given  to 
the  fundamental  principles  of  free  government;  on  the  other 
hand,  where  the  letter  of  the  constitution  would  prohibit 
police  regulations,  which  by  all  the  principles  of  constitu- 
tional government  have  been  recognized  as  beneficent  and 
permissible  restrictions  upon  the  individual  liberty  of  action, 
such  regulations  will  be  upheld  by  the  courts,  on  the  ground 
that  the  framers  of  the  constitution  could  not  possibly  have 
intended  to  deprive  the  government  of  so  salutary  a  power, 
and  hence  the  spirit  of  the  constitution  permits  such  legis- 
lation, although  a  strict  construction  of  the  letter  may  pro- 
hibit. But  in  such  a  case  the  regulation  must  fall  within  the 
enforcement  of  the  legal  maxim,  sic  utere  luo,  ut  alienum  non 
Icedas.  "  Powers  which  can  only  be  justified  on  this  specific 
ground  (that  they  are  police  regulations)  and  which  would 

present  constitution  of  the  United  States,  it  was  judicially  decided  in 
Massachusetts  that  slavery  was  abolished  in  that  State  by  a  provision  of 
the  State  constitution,  which  declared  that  "  all  men  are  born  free  and 
equal,  and  have  certain  natural,  essential  and  inalienable  rights,"  etc. 
This  clause  was  held  to  be  inconsistent  with  the  status  of  slavery,  and 
therefore  impliedly  emancipated  every  slave  in  Massachusetts.  See 
Draper,  Civil  War  in  America,  vol.  I.,  p.  317;  .Bancroft,  Hist,  of  U.  S. 
vol.  x.,  p.  365;  Cooley  Principles  of  Const.,  p.  213. 
§  3 


THE  PRINCIPAL   CONSTITUTIONAL   LIMITATIONS.  17 

otherwise  be  clearly  prohibited  by  the  constitution,  can  be 
such  only  as  are  so  clearly  necessary  to  the  safety,  comfort 
and  well-being  of  society,  or  so  imperatively  required  by 
the  public  necessity,  as  to  lead  to  the  rational  and  satisfac- 
tory conclusion  that  the  framers  of  the  constitution  could 
not,  as  men  of  ordinary  prudence  and  foresight,  have 
intended  to  prohibit  their  exercise  in  the  particular  case, 
notwithstanding  the  language  of  the  prohibition  would 
otherwise  include  it."  l  And  in  all  such  cases  it  is  the  duty 
of  the  courts  to  determine  whether  the  regulation  is  a 
reasonable  exercise  of  a  power,  which  is  generally  pro- 
hibited by  the  constitution.  «« It  is  the  province  of  the 
law-making  power  to  determine  when  the  exigency  exists 
for  calling  into  exercise  the  police  power  of  the  State,  but 
what  are  the  subjects  of  its  exercise  is  clearly  a  judicial 
question."  2 

Chief  Justice  Marshall  said  in  Marburg  v.  Madison :  3 
"  The  courts  are  not  bound  by  mere  forms,  nor  are 
they  to  be  misled  by  mere  pretenses.  They  are  at 
liberty  —  indeed  they  are  under  a  solemn  duty  —  to 
look  at  the  substance  of  things  whenever  they  enter 
upon  the  inquiry  whether  the  legislature  had  transcended 
the  limits  of  its  authority.  If,  therefore,  a  statute 
purporting  to  have  been  enacted  to  protect  the  public 
health,  the  public  morals  or  the  public  safety,  has  no  real 
or  substantial  relations  to  those  objects,  or  is  a  palpable 
invasion  of  rights  secured  by  the  fundamental  law,  it  is  the 
duty  of  the  court  to  so  adjudge,  and  thereby  give  effect  to 
the  constitution." 

§4.  The    principal    constitutional   limitations. — The 

principal  constitutional  limitations,  which  are  designed  to 

1  Christiancy,  J.,  in  People  t>.  Jackson  and  Mich.  Plank  Road  Co.,  9 
Mich.  286. 

2  Lake  View  v.  Rose  Hill  Cemetery,  70  111.  192. 
»  1  Cranch,  137. 

2  §    4 


18        SCOPE  OF  THE  GOVERNMENT  CONTROL. 

protect  private  rights,  against  the  arbitrary  exercise  of  gov- 
ernmental power,  and  which  therefore  operate  to  limit 
and  restrain  the  exercise  of  police  power,  are  the  follow- 
ing:— 

1.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed 
by  the  United  States,1  or  by  the  States.2 

2.  No  State  shall  pass  any  law  impairing  the  obligation 
of  a  contract.3 

3.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall   have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction.4 

4.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated;  and  no  warrants  shall 
issue   but   upon   probable    cause,    supported    by    oath  or 
affirmation,   and   particularly   describing   the  place  to  be 
searched,  and  the  person  or  thing  to  be  seized.5 

5.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner ;  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law.6 

6.  The  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed.7 

7.  Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion  or  prohibiting  the  free  exercise  thereof; 
or  abridging  the  freedom  of  speech,  or  of  the  press,  or  the 
right  of  the  people,  peaceably  to  assemble,  and  to  petition 
the  government  for  a  redress  of  grievances.8 

8.  No  person  shall  be  held  to  answer  for  a  capital,  or 

1  U.  S.  Const.,  art.  I.,  §  9. 
8  U.  S.  Const.,  art.  I.,  §  10. 
8  U.  S.  Const.,  art.  I.,  §  10. 

U.  8.  Const.  Amend.,  art.  VIII. 

U.  S.  Const.  Amend.,  art.  IV. 

U.  8.  Const.  Amend.,  art.  III. 

U.  8.  Const.  Amend.,  art.  II. 

U.  8.  Const.  Amend.,  art.  I. 
§  4 


THE   PRINCIPAL   CONSTITUTIONAL   LIMITATIONS.  19 

otherwise  infamous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual  ser- 
vice in  time  of  war  or  public  danger;  nor  shall  any  person 
be  subject  for  the  same  offense  to  be  twice  put  in  jeopardy 
of  life  or  limb ;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law;  nor 
shall  private  property  be  taken  for  public  use  without 
just  compensation.1 

9.  In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation ;  to  be  confronted 
with    the    witnesses    against   him ;     to    have    compulsory 
process  for  obtaining  witnesses  in   his  favor,  and  to  have 
the  assistance  of  counsel  for  his  defense.2 

10.  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishment  inflicted.8 

11.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when  in  cases  of  rebellion  or  invasion 
the  public  safety  may  require  it.4 

12.  No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States,  nor  shall  any  State  deprive  any  person  of  life,  lib- 
erty or  property,  without  due  process  of  law  ;  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws.6 

13.  The  right  of  the  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States,  or  by 

1  U.  S.  Const.  Amend.,  art.  V. 

2  U.  8.  Const.  Amend.,  art.  V. 

3  U.  S.  Const.  Amend.,  art.  VIII. 
«  U.  S.  Const.,  art.  I.,  §9. 

«  U.  S.  Const.  Amend.,  art.  XIV. 


20        SCOPE  OF  THE  GOVERNMENT  CONTROL. 

any  State,  on  account  of  race,  color,  or  previous  condition 
of  servitude.1 

Here  are  given  only  the  provisions  of  the  Federal  consti- 
tution, but  they  either  control  the  action  of  the  States,  as 
well  as  of  the  United  States,  or  similar  provisions  have 
been  incorporated  into  the  bills  of  rights  of  the  different 
State  constitutions,  so  that  the  foregoing  may  be  considered 
to  be  the  chief  limitations  in  the  United  States  upon  legis- 
lative interference  with  natural  rights.  Where  the  States 
are  not  expressly  named  in  connection  with  any  clause  of 
the  United  States  constitution,  the  provision  is  construed 
by  the  best  authorities  to  apply  solely  to  the  United  States.2 
But  all  of  these  limitations  have  been  repeated  in  the  State 
bill  of  rights,  with  some  little  but  unimportant  change  of 
phraseology,  together  with  other  more  minute  limitations. 

§  5.  Table  of  private  rights. — Police  power,  being  the 
imposition  of  restrictions  and  burdens  upon  the  natural 
and  other  private  rights  of  individuals,  it  becomes  neces- 
sary to  tabulate  and  classify  these  rights,  and  in  presenting 
for  discussion  the  field  and  scope  for  the  exercise  of  police 
power,  the  subject-matter  will  be  subdivided  according  to 
the  rights  upon  which  the  restrictions  and  burdens  are  im- 
posed. The  following  is 

THE   TABLE    OF   PRIVATE  RIGHTS. 

(a.)  Personal  rights. 

1.  Personal  security  —  Life. 

—  Limb. 

—  Health. 

—  Reputation. 

1  U.  8.  Const.  Amend.,  art.  XV. 

2  Barren  w.  Baltimore,  7  Pet.  243;  Livingston's  Lessee  t>.  Moore,  Ib. 
469;  FOXTJ.  Ohio,  6  How.  410;  Smith  t>.  Maryland,  18  How.  71;  Parvear 
».  Com.,  5  Wall.  475;  Twitchell  v.  Com.,  7  Wall.  321;  Com.  w.  Hitchings, 
5  Gray,  482;  Bigelow  v.  Bigelow,  120  Mass.  300,  etc. 

§  5 


TABLE    OF    PRIVATE    RIGHTS. 


21 


2.  Personal  liberty. 

3.  Private  property  —  Real. 

—  Personal. 
(6.)  Relative  Rights 

arising  between  1.  Husband  and  wife. 

2.  Parent  and  child. 

3.  Guardian  and  ward. 

4.  Master  and  servant. 
(c.)  Statutory  Rights 

embracing  all  those  rights  which  rest  upon  leg- 
islative grant. 


§  5 


CHAPTER    II. 

GOVERNMENT  REGULATION  OF  PERSONAL  SECURITY. 

SECTION  10.  Security  to  life. 

11.  Capital  punishment. 

12.  Security  to  limb  and  body. 

13.  Corporal  punishment. 

14.  Personal  chastisement  in  certain  relations. 
16.  Battery  in  self-defense. 

16.  Abortion. 

17.  Compulsory  submission  to  surgical  and  medical  treatment. 

18.  Security  to  health  —  Legalized  nuisances. 

19.  Security  to  reputation  —  Privileged  communications. 

20.  Privilege  of  legislators. 

21.  Privilege  in  judicial  proceedings. 

22.  Criticism  of  officers  and  candidates  for  office. 

23.  Publications  through  the  press. 

24.  Security  to  reputation  —  Malicious  prosecution. 

25.  Advice  of  counsel  —  How  far  a  defense. 

§  10.  Security  to  life.  —  The  legal  guaranty  of  the  pro- 
tection of  life  is  the  highest  possession  of  man.  It  consti- 
tutes the  condition  precedent  to  the  enjoyment  of  all  other 
rights.  A  man's  life  includes  all  that  is  certain  and  real  in 
human  experience,  and  since  its  extinction  means  the  de- 
privation of  all  temporal  rights,  the  loss  of  his  own  person- 
ality, so  far  as  this  world  is  concerned,  the  cause  or  motive 
for  its  destruction  must  be  very  urgent,  and  of  the  highest 
consideration,  in  order  to  constitute  a  sufficient  justification. 
If  there  be  any  valid  ground  of  justification  in  the  taking  of 
human  life,  it  can  only  rest  upon  its  necessity  as  a  means  of 
protection  to  the  community  against  the  perpetration  of 
dangerous  and  terrible  crimes  by  the  person  whose  life  is 
to  be  forfeited.  When  a  person  commits  a  crime,  that  is, 
trespasses  upon  the  rights  of  his  fellow-men,  he  subjects  his 
own  rights  to  the  possibility  of  forfeiture,  including 'even 
(22)  §  10 


SECURITY   TO   LIFE.  23 

the  forfeiture  of  life  itself ;  and  the  only  consideration,  in- 
dependently of  constitutional  limitations,  being,  whether 
the  given  forfeiture,  by  exerting  a  deterrent  influence,  will 
furnish  the  necessary  protection  against  future  infringe- 
ments of  the  same  rights.  That  is,  of  course,  only  a  ques- 
tion of  expedience  addressed  to  the  wise  discretion  of 
legislators,  and  does  not  concern  the  courts.  Except  as  a 
punishment  for  crime,  no  man's  life  can  be  destroyed,  not 
even  with  his  consent.  Suicide,  itself,  is  held  to  be  a  crime, 
and  one  who  assists  another  in  the  commission  of  suicide 
is  himself  guilty  of  a  crime.1  This  rule  of  the  common 
law  is  in  apparent  contradiction  with  the  maxim  of  the 
common  law,  which  in  every  other  case  finds  ready  ac- 
quiescence, viz.:  an  injury  (i.  e.  a  legal  wrong)  is  never 
committed  against  one  who  voluntarily  accepts  it,  volenti 
iion  fit  injuria.  If  a  crime  be  in  every  case  a  trespass 
upon  the  rights  of  others  2  suicide  is  not  a  crime,  and 
it  would  not  be  a  crime  to  assist  one  "  to  shuffle 
off  this  mortal  coil."  But  the  dread  of  the  uncertainties 
of  the  life  beyond  the  grave  so  generally  "  makes  us  rather 
bear  those  ills  we  have,  than  fly  to  others  that  we  know  not 
of,"  that  we  instinctively  consider  suicide  to  be  the  act  of  a 
deranged  mind  ;  and  on  the  hypothesis  that  no  sane  man  ever 
commits  suicide  the  State  may  very  properly  interfere  to 
prevent  self-destruction,  and  to  punish  those  who  have 
given  aid  to  the  unfortunate  man  in  his  attack  upon  him- 
self, or  who  have  with  his  consent,  or  by  his  direction, 
killed  a  human  being.  But  if  we  hold  suicide  to  be  in  any 
case  the  act  of  a  sane  man,  I  cannot  see  on  what  legal 
grounds  he  can  be  prevented  from  taking  his  own  life.  It 
would  be  absurd  to  speak  of  a  man  being  under  a  legal  ob- 
ligation to  society  to  live  as  long  as  possible.  The  immor- 
ality of  the  act  does  not  make  it  a  crime,8  and  since  it  is 

1  4  Bl.  Com.  188, 189. 
8  See  post,  §  60. 
8  See  post,  §  60. 

§  23 


24   GOVERNMENT  REGULATION  OF  PERSONAL  SECURITY. 

not  a  trespass  upon  the  rights  of  any  one,  it  is  not  an  act 
that  the  State  can  prohibit.  But  even  if  suicide  be  declared 
a  crime,  the  act  has  carried  the  criminal  beyond  the  juris- 
diction of  the  criminal  courts,  and  consequently  no  punish- 
ment could  be  inflicted  on  him.  The  common  law  in  pro- 
viding that  the  body  of  a  suicide  should  be  buried  at  the 
cross-roads  with  a  stake  driven  through  it,  and  that  his 
property  shall  be  forfeited  to  the  crown,  violated  the  fun- 
damental principle  of  constitutional  law  that  no  man  can 
be  condemned  and  punished  for  an  offense,  except  after  a 
fair  trial  by  a  court  of  competent  jurisdiction,  in  which 
the  accused  is  given  an  opportunity  to  be  heard  in  his 
own  defense.  It  is  somewhat  different  where  one  man 
kills  another  at  the  latter's  request.  If  it  be  held  that  the 
man  who  makes  the  request  is  sane,  the  killing  is  no  more  a 
crime  than  if  it  was  done  by  the  unfortunate  man  himself. 
But  in  consideration  of  the  difficulty  in  proving  the  request, 
and  the  frequent  opportunities  for  felonious  murders  the 
allowance  of  such  deeds  would  afford,  the  State  can  very 
properly  prohibit  the  killing  of  one  man  by  another  at  the 
former's  request.  These  considerations  would  justify  this 
exercise  of  police  power,  and  in  only  one  case  is  it  sup- 
posed that  any  fair  reason  may  be  given  for  allowing  it, 
and  that  is,  where  one  is  suffering  from  an  incurable  and 
painful  disease.  If  the  painful  sufferer,  with  no  prospect 
of  a  recovery  or  even  temporary  relief  from  physical 
agony,  instead  of  praying  to  God  for  a  deliverance,  should 
determine  to  secure  his  own  release,  and  to  request  the  aid 
of  a  physician  in  the  act,  the  justification  of  the  act  on 
legal  grounds  may  not  be  so  difficult.  But  even  in  such  a 
case  public,  if  not  religious,  considerations  would  justify  a 
prohibition  of  the  homicide. 

§  11.  Capital  punishment,  when  cruel  and  unusual. — 

That  capital  punishment  may  be  imposed  for  the   commis- 
sion of  crimes   against  the    life    of  another,    and  crimes 
§   11 


CAPITAL   PUNISHMENT,  WHEN   CRUEL.  25 

against  those  rights  of  personal  security,  which  are  in 
the  estimation  of  the  generality  of  mankind  as  dear  as  life 
itself,  for  example,  arson  and  rape,  seems  to  admit  of  no 
doubt,  not  even  in  the  realms  of  reason  and  natural  justice. 
Certainly  there  is  no  constitutional  prohibition  against  its 
infliction  for  these  offenses.  These  are  mala  in  se,  viola- 
tions of  the  natural  rights  of  man,  and  there  is  in  the  breast 
of  every  human  being  a  natural  fear  of  punishment,  propor- 
tionate to  each  and  every  violation  of  human  rights.  In 
the  absence  of  a  regularly  established  society,  in  a  state  of 
nature,  the  power  to  inflict  this  punishment  for  natural 
crimes  is  vested  in  every  individual,  since  every  one  is 
interested  in  providing  the  necessary  protection  for  life. 
"  Whereof,"  Mr.  Blackstone  says,  "  the  first  murderer, 
Cain,  was  so  sensible,  that  we  find  him  expressing  his  ap- 
prehensions, that  whoever  should  find  him  would  slay  him."  1 
In  organized  society,  a  supreme  power  being  established, 
which  is  able  and  is  expressly  designed  to  provide  for  the 
public  security, the  government  succeeds  to  this  natural  right 
of  the  individual.  **  In  a  state  of  society  this  right  is  trans- 
ferred from  individuals  to  the  sovereign  power,  whereby 
men  are  prevented  from  being  judges  in  their  own  causes, 
which  is  one  of  theevils  that  civilgovernment  was  intended  to 
remedy."  *  These  cases  of  capital  punishment  are  readily 
justified,  but  it  would  seem  to  be  a  matter  of  very  grave 
doubt,  certainly  on  rational  grounds,  whether  the  legislature 
had  the  power  to  provide  capital  punishment  for  the  commis- 
sion of  a  crime  which  is  only  a  malum  prohibitum,  an  act 
which  by  the  law  of  nature  is  not  a  violation  of  human  rights. 
But  whatever  may  be  the  final  settlement  of  this  question, 
by  the  common  law  capital  punishment  was  inflicted  for 
numerous  crimes  of  very  different  characters  and  grades  of 
heinousness.  Says  Blackstone:  "  It  is  a  melancholy  truth, 

1  4  Bl.  Com.  8. 
s  4  Bl.  Com.  8. 


26       GOVERNMENT    REGULATION    OF   PERSONAL    SECURITY. 

that  among  the  variety  of  actions  which  men  are  daily  liable 
to  commit,  no  less  than  a  hundred  and  sixty  have  been  de- 
clared by  act  of  Parliament  to  be  felonies  without  benefit  of 
clergy ;  or  in  other  words,  to  be  worthy  of  instant  death."  1 
Sir  Matthew  Hale  justifies  this  practice  of  inflicting  capital 
punishment  for  crimes  of  human  institution  in  the  follow- 
ing language:  "When  offenses  grow  enormous,  frequent 
and  dangerous  to  a  kingdom  or  state,  destructive  or  highly 
pernicious  to  civil  societies,  and  to  the  great  insecurity  and 
danger  of  the  kingdom  or  its  inhabitants,  severe  punishment 
and  even  death  itself  is  necessary  to  be  annexed  to  laws  in 
many  cases  by  the  produce  of  law-givers."  2 

It  may  now  be  considered  as  a  settled  doctrine  that,  in 
the  absence  of  an  express  constitutional  prohibition,  the 
infliction  of  capital  punishment  rests  entirely  in  the  discre- 
tion of  the  legislature.  The  only  constitutional  limitation 
which  can  bear  upon  the  subject  under  discussion,  is  that 
found  in  both  the  national  and  State  constitutions,  which 
prohibits  the  imposition  of  "  cruel  and  unusual  punish- 
ments." 3  Capital  punishment  in  itself  is  not  "  cruel," 
but  the  mode  of  its  infliction  may  be  "  cruel  and  unusual," 
and  hence  contravene  this  constitutional  provision.  Thus, 
for  example,  would  be  those  cruel  punishments  of  colonial 
times  and  of  the  common  law,  such  as  burning  at  the  stake, 
breaking  on  the  wheel,  putting  to  the  rack,  and  the  like. 
In  the  present  temper  of  public  opinion,  these  would  un- 
doubtedly be  considered  "  cruel  and  unusual  punishments," 
and  therefore,  forbidden  by  the  constitution.4  But  would 

1  4  Bl.  Com.  18. 

2  4  Bl.  Com.  9. 

8  U.  S.  Const.  Amend.,  art.  8. 

4  Done  v.  People,  5  Park.  864.  In  People  v.  Durston,  119  N.  Y. 
669,  and  People  v.  Kemmler,  119  N.  Y.  680,  in  which  the 
New  York  statute,  directing  the  infliction  of  the  death  penalty  by 
electricity,  was  held  to  be  constitutional,  the  court  declared  that 
this  was  not  a  new  punishment,  but  only  a  new  method  of  inflicting 
capital  punishment.  And  where  a  new  method  of  inflicting  the  same 
§  U 


CAPITAL   PUNISHMENT,  WHEN   CRUEL.  27 

the  infliction  of  capital  punishment  for  offenses,  not  involv- 
ing the  violation  of  the  right  to  life  and  personal  security, 
be  such  a  "cruel  and  unusual"  punishment,  as  that  it 
would  be  held  to  be  forbidden  by  this  constitutional  pro- 
vision? It  would  seem  to  me  that  the  imposition  of  the 
death  penalty  for  the  violation  of  the  revenue  laws,  i.  e., 
smuggling,  or  the  illicit  manufacture  of  liquors,  or  even  for 
larceny  or  embezzlement,  would  properly  be  considered  as 
prohibited  by  this  provision  as  being  **  cruel  and  un- 
usual." But  if  such  a  construction  prevailed,  it  would  be 
difficult  to  determine  the  limitations  to  the  legislative  dis- 
cretion. 

There  has  been  so  little  litigation  over  this  provision  of 
our  constitutions,  that  it  is  not  an  easy  matter  to  say  what 
is  meant  by  the  clause.  Judge  Cooley  says:  "  Probably 
any  punishment  declared  by  statute  for  any  offense,  which 
was  punished  in  the  same  way  at  common  law,  could  not  be 
regarded  as  cruel  and  unusual  in  the  constitutional  sense. 
And  probably  any  new  statutory  offense  may  be  punished 
to  the  extent  and  in  the  mode  permitted  by  the  common  law 
for  offenses  of  a  similar  nature."1  Capital  punishment 
can  be  inflicted,  in  organized  society,  only  under  the  war- 
rant of  a  court  of  justice,  having  the  requisite  jurisdiction, 
and  it  must  be  done  by  the  legal  officer,  whose  duty  it  is  to 
execute  the  decrees  of  the  court.  The  sentence  of  the 
court  must  be  followed  implicitly.  The  sheriff  is  not 

punishment  was  directed  by  statute,  its  constitutionality  can  be  success- 
fully attacked  only  by  proving  that  the  new  method  would  produce 
extreme  and  unnecessary  suffering.  In  other  words,  a  new  punishment 
must  be  both  cruel  and  unusual,  in  order  to  fall  under  the  ban  of  this 
constitutional  provision.  See,  also,  in  confirmation  of  these  New  York 
cases,  In  re  Kemmler,  136  U.  S.  436,  in  which  it  is  held  that  the  New 
York  statute  does  not  violate  the  Fourteenth  Amendment  of  the  Consti- 
tution of  the  United  States,  by  imposing  a  cruel  punishment.  See  post, 
§  31,  as  to  the  application  of  this  constitutional  provision  to  the 
punishment  of  crimes  in  general. 
1  Cooley  Const.  Lim.  403,  404. 

§    U 


28      GOVERNMENT   REGULATION   OF   PERSONAL   SECURITY. 

authorized  to  change  the  mode  of  death,  without  becoming 
guilty  of  the  crime  of  felonious  homicide.1 


SECTION   12.  Security  to  limb  and  body  —  General  statement. 

13.  Corporal  punishment. 

14.  Personal  chastisement  in  certain  relations. 

§  12.  Security  to  limb  and  body — General  state- 
ment.—  This  right  is  as  valuable,  and  as  jealously  guarded 
against  violation,  as  the  primary  right  to  life.  Not  only 
does  it  involve  protection  against  actual  bodily  injuries, 
but  it  also  includes  an  immunity  from  the  unsuccessful 
attempts  to  inflict  bodily  injuries,  a  protection  against 
assaults,  as  well  as  batteries.  This  protection  against 
the  hostile  threats  of  bodily  injury  is  as  essential  to  one's 
happiness  as  immunity  from  actual  battery.2  But  however 
high  an  estimate  may.  be  placed  generally  upon  this  right 
of  personal  security  of  limb  and  body,  there  are  cases  in 
which  the  needs  of  society  require  a  sacrifice  of  the  right ; 
usually,  however,  where  the  wrongful  acts  of  the  person 
whose  personal  security  is  invaded,  have  subjected  him  to 
the  possibility  of  forfeiture  of  any  right  as  a  penalty  for 
wrong-doing. 

§  13.  Corporal  punishment  —  When  a  cruel  and  unu- 
sual punishment.  —  The  whipping-post  constituted  at  one 
time  a  very  common  instrument  of  punishment,  and  in  the 
colonial  days  of  this  country  it  ornamented  the  public 
square  of  almost  every  town.  At  present  corporal  punish- 
ment is  believed  to  be  employed  only  in  Delaware  and 
Maryland.8  It  was  much  resorted  to  in  England  as  a  pun- 

1  4  Bl.  Com.  402-404. 

8  "  Without  such  security  society  loses  most  of  its  value.  Peace  and 
order  and  domestic  happiness,  inexpressibly  more  precious  than  mere 
forms  of  government,  cannot  be  enjoyed  without  the  sense  of  perfect 
security."  Gilchrist,  J.,  in  Beach  v.  Hancock,  27  N.  H.  223. 

8  In  Maryland  it  has  been  revived  as  a  punishment  for  wife-beating. 
§   13 


CORPORAL   PUNISHMENT,  WHEN    CRUEL.  29 

ishment  for  certain  classes  of  infamous  crimes.  "  The 
general  rule  of  the  common  law  was  that  the  punishment 
of  all  infamous  crimes  should  be  disgraceful ;  as  the  pillory 
for  every  species  of  crimen  falsi,  as  forgery,  perjury  and 
other  offenses  of  the  same  kind.  Whipping  was  more 
peculiarly  appropriated  to  petit  larceny  and  to  crimes  which 
•betray  a  meanness  of  disposition  and  a  deep  taint  of  moral 
depravity."  l  It  does  seem  as  if  there  are  crimes  so  infa- 
mous in  character,  and  betoken  such  a  hopeless  state  of 
moral  iniquity,  that  they  can  only  be  controlled  and  arrested 
by  the  degrading  punishment  of  a  public  whipping.  It  is 
now  being  very  generally  suggested  as  the  only  appropriate 
punishment  for  those  cowardly  creatures  who  lay  their 
hands  in  violence  upon  their  defenseless  wives.  But  public 
opinion  is  still  strongly  opposed  to  its  infliction  in  any  case. 
The  punishment  is  so  degrading  that  its  infliction  leaves 
the  criminal  very  little  chance  for  reformation,  unless  he 
betakes  himself  to  a  land,  whither  the  disgrace  will  not 
follow  him,  or  be  generally  known.2 

In  respect  to  the  constitutional  right  to  impose  the 
penalty  of  corporal  punishment  for  crime,  Judge  Cooley 
says:  "  We  may  well  doubt  the  right  to  establish  the 
whipping-post  and  the  pillory  in  the  States  in  which  they 
were  never  recognized  as  instruments  of  punishment,  or 
in  States  whose  constitutions,  revised  since  public  opinion 
had  banished  them,  have  forbidden  cruel  and  unusual 
punishment.  In  such  States  the  public  sentiment  must 
be  regarded  as  having  condemned  them  as  *  cruel;  '  and 
any  punishment,  which  if  ever  employed  at  all  has  become 
altogether  obsolete,  must  certainly  be  looked  upon  as 
'  unusual.'  "  8  The  fact,  that  this  mode  of  punishment 

1  Taylor,  Ch.  J.,  in  State  ».  Kearney,  1  Hawks,  53. 

2  "  Among  all  nations  of  civilized  man,  from  the  earliest  ages,  the  in- 
fliction   of   stripes  has  been  considered   more  degrading  than  death 
itself."    Berber  o.  State,  7  Texas,  69. 

8  Cooley  Const.  Lim.  *330. 

§    13 


80      GOVERNMENT    REGULATION   OF  PERSONAL    SECURITY. 

has  become  obsolete,  has  made  it  impossible  to  secure  any 
large  number  of  adjudications  on  the  constitutionality  of  a 
statute,  which  authorized  or  directed  the  infliction  of 
corporal  punishment.  But  so  far  as  the  courts  have  passed 
upon  the  question,  they  have  decided  in  favor  of  its  consti- 
tutionality, and  held  that  whipping  was  not  a  ««  cruel  and 
unusual  "  punishment.1  It  has  also  been  recognized  as  a 
legitimate  power,  in  keepers  of  prisons  and  wardens  of 
penitentiaries  to  administer  corporal  punishment  to  refrac- 
tory prisoners.2  But  whatever  may  be  the  correct  view  in 
respect  to  the  constitutionality  of  laws  imposing  corporal 
punishment,  this  mode  of  punishment  has  now  become 
very  generally  obsolete,  and  no  court  would  presume  to 
employ  it  upon  the  authority  of  the  English  common  law. 
A  statute  would  be  necessary  to  revive  it.3 

§  14.  Personal    chastisement    in  certain  relations.  — 

As  a  natural  right,  in  consequence  of  the  duty  imposed 
upon  the  husband,  parent,  guardian  and  master,  it  was 
conceded  by  the  common  law  that  they  could  inflict  cor- 
poral punishment,  respectively,  upon  the  wife,  child,  pupil, 
ward  and  apprentice.  But  as  the  domestic  relations,  and 
the  relative  rights  and  duties  growing  out  of  them,  will 
receive  a  more  detailed  treatment  in  a  subsequent  chapter, 
the  reader  is  referred  to  that  chapter.4 

§  15.  Battery  in  self-defense. — One  of  the  primary 
restrictions  upon  individual  liberty,  growing  out  of  the 

1  Commonwealth  v.  Wyatt,  6  Rand.  694 ;  Fobte  v.  State,  59  Md.  264 
(for  wife-beating) ;  Garcia  v.  Territory,  1  New  Mex.  415.    In  the  last 
case,  the  corporal  punishment  was  inflicted  for  horse-stealing. 

2  Cornell  v.  State,  6  Lea,  624.    This  power  is  exercised  generally 
throughout  the  country ;  it  is  hard  to  say,  to  what  extent  with  the  direct 
sanction  of  law. 

»  1  Bishop  Crim.  Law,  §  722.  Under  the  national  government,  both 
the  whipping-post  and  the  pillory  were  abolished  by  act  of  Congress  in 
1839.  6  U.  S.  Stat.  at  Large,  ch.  36,  §  5. 

*  See  post,  §§  191,  195,  203. 
§  15 


BATTEKY   AND    SELF-DEFENSE.  31 

organization  of  society  and  the  institution  of  government, 
is  that  which  limits  or  takes  away  the  right  to  undertake 
the  remedy  of  one's  own  wrongs,  and  provides  a  remedy  in 
the  institution  of  courts  and  the  appointment  of  ministerial 
officers,  who  hear  the  complaints  of  parties  and  condemn 
and  punish  all  infractions  of  rights.  But  the  natural  right 
of  protecting  one's  own  rights  can  only  be  taken  away  justly 
where  the  law  supplies  in  its  place,  and  through  the  ordi- 
nary judicial  channels,  a  reasonably  effective  remedy.  In 
most  cases  where  the  remedy  should  be  preventive,  in 
order  that  it  may  be  effectual,  the  law  is  clearly  powerless 
to  afford  the  necessary  protection,  and  hence  it  recognizes 
in  private  persons  the  right  to  resist  by  the  use  of  force 
all  attacks  upon  their  natural  rights.  The  degree  of  force, 
which  one  is  justified  in  using  in  defense  of  one's  rights,  is 
determined  by  the  necessities  of  the  case.  He  is  authorized 
to  use  that  amount  of  force  which  is  necessary  to  repel  the 
assailant.1  And  in  defending  his  rights,  as  a  general  rule, 
he  may  use  whatever  force  is  necessary  for  their  protection, 
although  it  extends  to  the  taking  of  life.  But  before  using 
force  in  repelling  an  assault  upon  one's  person,  certainly 
where  the  necessary  force  would  involve  the  taking  of  life, 
the  law  requires  the  person,  who  is  assailed,  to  retreat 
before  his  assailant,  and  thus  avoid  a  serious  altercation  as 
long  as  possible.  When  escape  is  impossible,  then  alone 
is  homicide  justifiable.  Says  Blackstone  •  "  For  which 
reason  the  law  requires  that  the  person,  who  kills  another 
in  his  own  defense,  should  have  retreated  as  far  as  he  con- 
veniently or  safely  can,  to  avoid  the  violence  of  the  assault, 
before  he  turns  upon  his  assailant;  and  that  not  fictitiously, 
or  in  order  to  watch  his  opportunity,  but  from  a  real  ten- 

1  Bartlett  v.  Churchhill,  24  Vt.  218;  Elliott  ».  Brown,  2  Wend.  497; 
Murray  v.  Commonwealth,  79  Pa.  St.  311;  Lewis  v.  State,  61  Ala.  1;  Mc- 
Pherson  v.  State,  29  Ark.  225;  Holloway  v.  Commonwealth,  11  Bush,  344; 
Erwin  v.  State,  29  Ohio  St.  186;  Roach  v.  People,  77  111.  25;  State  v. 
Kennedy,  20  Iowa,  569;  State  v.  Shippen,  10  Minn.  223. 

§    15 


32      GOVERNMENT   REGULATION   OF  PERSONAL   SECURITY. 

derness  of  shedding  his  brother's  blood."  *  In  the  excite- 
ment which  usually  attends  such  occurrences,  it  would  be 
requiring  too  much  of  the  party  assailed  to  adjust  to 
a  nicety  the  exact  amount  of  force  which  would  be  sufficient 
to  furnish  him  and  his  rights  with  the  necessary  protection, 
and  hence  he  is  required  to  exercise  that  degree  of  care 
which  may  be  expected  from  a  reasonably  prudent  man 
under  similar  circumstances.2 

Blackstone  also  justifies,  in  cases  of  extreme  necessity, 
the  taking  of  the  life  of  another,  for  the  preservation  of 
one's  own  life,  where  there  is  no  direct  attack  upon  the 
personal  security,  but  the  circumstances,  surrounding  the 
persons,  require  the  death  of  one  of  them.  He  says : 
"  There  is  one  species  of  homicide  se  defendendo  where 
the  party  slain  is  equally  innocent  as  he  who  occasions  his 
death :  and  yet  this  homicide  is  also  excusable  from  the 
great  universal  principle  of  self-preservation,  which  prompts 
every  man  to  save  his  own  life  preferable  to  that  of  another, 
where  one  of  them  must  inevitably  perish.  As,  among 
others,  in  that  case  mentioned  by  Lord  Bacon,8  where  two 
persons  being  shipwrecked,  and  getting  on  the  same  plank, 
but  finding  it  not  able  to  save  them  both,  one  of  them 
thrusts  the  other  from  it,  whereby  he  is  drowned.  He  who 
thus  preserves  his  own  life  at  the  expense  of  another  man's 
is  excusable  through  unavoidable  necessity,  and  the  principle 
of  self-defense ;  since  both  remaining  on  the  same  weak  plank 
is  a  mutual,  though  innocent,  attempt  upon,  and  an  endanger- 
ing of  each  other's  life."  4  But,  of  late,  the  doctrine  has 
been  repudiated  by  the  English  courts  in  a  case,  which  has 
created  widespread  interest.  A  shipwreck  had  occurred, 
and  some  four  or  five  persons  occupied  one  of  the  life-boats. 

1  4  Bl.  Com.  217.    See  People  v.  Sullivan,  7  N.  Y.  396;  State  v.  Dixon, 
75  N.  C.  275;  Haynes  v.  State,  17  Ga.  465;  Tweedy  v.  State,  5  Iowa,  433. 
*  Shorter  v.  People,  2  N.  Y.  193 ;  Patterson  v.  People,  46  Barb.  625. 
s  Elem.  c.  5. 

4  4  Bl.  186. 

6   15 


BATTERY    AND    SELF-DEFENSE.  33 

They  were  without  provisions,  and  after  enduring  the  pangs 
of  hunger  until  they  were  almost  bereft  of  reason,  one  per- 
son, a  young  boy,  was  selected  by  the  others  to  die  for  their 
benefit.  The  boy  was  killed,  and  the  others  subsisted  on 
his  flesh  and  blood,  until  they  were  overtaken  by  a  vessel, 
and  carried  to  England.  Their  terrible  experience  was 
published  in  the  papers,  and  the  ship  having  been  an  English 
vessel,  they  were  arrested  on  the  charge  of  murder,  and 
convicted,  notwithstanding  the  strong  effort  of  counsel  to 
secure  from  the  court  a  recognition  of  the  principle  advo- 
cated by  Blackstone.  A  contrary  doctrine  is  laid  down  by 
the  court,  that  no  one  has  a  right  to  take  the  life  of  another 
to  save  his  own,  except  when  it  is  endangered  by  the  at- 
tacks of  the  other  person.  Even  in  cases  of  the  extremest 
necessity  the  higher  law  must  be  obeyed,  that  man  shall  not 
save  his  life  at  the  expense  of  another,  who  is  not  responsi- 
ble for  the  threatening  danger.1 

Homicide  is  not  only  justifiable  when  committed  in  de- 
fense of  one's  life,  but  it  is  likewise  excusable,  when  it  is 
necessary  to  the  protection  of  a  woman's  chastity.  She 
may  employ  whatever  force  is  necessary  to  afford  her  pro- 
tection against  the  assault,  even  to  the  taking  of  life.2  So 
may  one  use  any  degree  of  force  that  may  be  necessary  to 
protect  any  member  of  his  family,  a  wife,  child,  etc.3 
So  may  a  battery  be  justified  which  is  committed  in  defense 
of  one's  property,  both  real  and  personal,  providing,  al- 
ways, that  the  force  used  is  not  excessive.4  And  where 


1  Reg  v.  Dudley,  15  C.  C.  624;   H  L.  R.  Q    B.  Div.  273,  660;  54  L.  J. 
M.  C.  32,  52.     See  the  Mignonette  Case,  19  Am.  Law  Rev.  118. 

2  Staten  v.  State,  30  Miss.  619;  Briggs  v.  State,  29  Qa.  733. 

3  Commonwealth  v.   Malone,  114  Mass.  295,  Stoneman  o.  Common- 
wealth, 25  Gratt.  887;  State  v-  Johnson,  75  N.  C.  174;  Staten  v.  State,  30 
Miss.  619;  Patten  v.  People,  18  Mich.  314. 

4  Green  v.  Goddard,  2  Salk.  641;  Beecher  v.  Parmele,  9  Vt.  352;  Har- 
rison v.  Harrison,  43  Vt.  417;  Ayers  v.  Birtch,  35  Mich.  501;  Woodman 
».  Howell,  45  III.  367;  Abt  v.  Burgheim,  80  111.  92;  Staehlln  v.  Destrehan, 
2  La.  Ann.  1019;  McCarty  v.  Fremont,  23  Cal.  196. 

3  §    15 


34      GOVERNMENT   REGULATION    OF   PERSONAL    SECURITY. 

one  is  assaulted  in  one's  dwelling,  he  is  not  required  to 
retreat,  but  he  may  take  the  trespasser's  life,  if  such  ex- 
treme force  is  necessary  to  prevent  an  entrance.1  But, 
although  one  may  resist  to  any  extent  the  forcible  taking 
away  of  any  property  from  himself,  yet  homicide  in  resist- 
ing a  simple  trespass  to  property,  where  there  is  no  violence 
offered  to  the  person,  is  never  justifiable,  except  in  the  case 
of  one's  dwelling.2 

In  all  these  cases,  the  assault  and  battery  are  justified, 
only  where  they  are  employed  in  protecting  rights  against 
threatened  injury.  One  cannot  use  force  in  recovering 
property  or  rights  which  have  been  taken  or  denied,3  or  in 
punishing  those  who  have  violated  his  rights.  It  is  no  part 
of  one's  legal  rights  to  avenge  the  wrongs  of  himself  and  of 
his  family.4 

At  common  law  it  was  the  right  of  one,  who  was  unlaw- 
fully disseised,  to  recover  his  lands  by  force  of  arms,  using 
whatever  force  was  necessary  to  that  end.  But  in  the  reign 
of  Richard  II.,  a  statute  was  passed  which  prohibited  en- 
tries upon  land,  in  support  of  one's  title,  "  with  strong 
hand  or  a  multitude  of  people,  but  only  in  a  peaceable  and 
easy  manner." 5  Similar  statutes  have  been  passed  in 
most  of  the  States  of  this  country,  and  the  effect  of  the 

1  State  v.  Burwell,63N.  C.  661;  McPherson  v.  State,  22  Ga.  478;  State 
v.  Abbott,  8  W.  Va.  741;  Pitford  v.  Armstrong,  Wright  (Ohio),  94;    Wall 
v.  State,  51  Ind.  453;  Pond  v.  People,  8  Mich.  150;  State  v.  Stockton,  61 
Mo.  382;  Palmore  v.  State,  29  Ark.  248. 

2  State  v.  Vance,  17  Iowa.  138.     See  Loomis  v.  Terry,  17  Wend.  496. 
See,  also,  Bird  v.  Holbrook,  4  Bing.  62*;  Aldrich  ».  Wright,  53  N.  H.  398 
(16  Am.  Rep.  339);  Hooker  v.  Miller,  37  Iowa,  613  (18  Am.  Rep.  18), 
where  it  is  held  that  the   use  of  spring  guns  and  other  like  instru- 
ments, which  cause  the  death  of  trespassers  upon  the  land,  is  not  per- 
missible. 

8  Commonwealth  v.  Haley,  4  Allen,  318;  Sampson  v.  Henry,  13  Pick. 
336;  Churchill  v.  Hulbert,  110  Mass.  42  (14  Am.  Rep.  578). 

4  Cockroft  v.  Smith,  11  Mod.  43;  Barfoot  v.  Reynolds,  2  Stra.  953; 
State  v.  Gibson,  10  Ired.  214. 

6  Tiedeman  on  Real  Property,  §  228. 

§    15 


ABORTION.  35 

statute  has  been  the  subject  of  more  or  less  extensive  liti- 
gation. The  question  has  been  mooted  from  an  early 
period,  whether  the  purpose  of  the  statute  was  to  take 
away  the  common-law  civil  right  to  recover  one's  lawful 
possession  by  force  of  arms,  or  simply  to  provide  a  pun- 
ishment for  the  breach  of  the  public  peace  thereby  occa- 
sioned. Although  there  are  decisions,  which  maintain  that 
the  statute  has  this  double  effect,  and  that  such  a  forcible 
entry  would  lay  the  lawful  owner  open  to  civil  actions  for 
trespass  and  for  assault  and  battery,1  yet  the  weight  of 
authority;  both  in  this  country  and  England,  is  certainly 
in  favor  of  confining  the  operation  of  the  statute  to  a  crim- 
inal prosecution  for  the  prohibited  entry.  The  decisions 
cited  below  maintain  that  the  plea  of  liberum  tenementum 
is  a  good  plea  to  every  action  of  trespass  guare  clausum 
fregil,  and  even  if  the  tenant  is  forcibly  expelled  and  suf- 
fers personal  injuries  therefrom,  no  civil  action  for  any 
purpose  will  lie,  unless  the  force  used  was  greater  than 
what  was  necessary  to  effect  his  expulsion.2 

§  16.  Abortion.  —  In  the  act  of  abortion,  there  is  a  two- 
fold violation  of  rights.  In  the  first  place,  it  involves  a 
violation  of  personal  security  to  the  limbs  and  body  of  the 

1  Reeder  v.  Pardy,  41  111.  261;  Doty  v.  Burdick,  83  111.  473;    Knight  v. 
Knight,  90  111.  208;  Dustin  v.  Cowdry,  23  Vt.  631 ;  Whittaker  v.  Perry,  38 
Vt.  107  (but  see  contra  Beecher  v.  Parmelee,  9  Vt.  352;  Mussey  u.  Scott, 
82  Vt.  82).     See  Moore  v.  Boyd,  24  Me.  247. 

2  Harvey  v.  Brydges,  13  M.  &  W.  437;  Davis  v.  Burrell,  IOC.  B.  821; 
Hilbourne  v.  Fogg,  99  Mass.  11;  Churchill  v.  Hulbert,  110  Mass.  42  (15 
Am.  Rep.  578);  Clark  v.  Kelliher,  107  Mass.  406;  Stearns  v.  Sampson,  59 
Me.  569  (8  Am.  Rep.  442)  ;  Sterling  v.  Warden,  51  N.  H.  239  (12  Am.  Rep. 
80);  Livingston  v.  Tanner,  14  N.  H.  64;  Estes  v.  Redsey,  8  Wend.  560; 
Kellum  v.  Jansorn,  17  Pa.  St.  467;  Zell  v,  Reame,  31  Pa.  St.  304;  Todd  v. 
Jackson,  26  N.  J.  L.  525;  Walton  v.  Fill,  1  Dev.  &  B.  507;  Johnson  v. 
Hanahan,  1  Strobh.  313;  Tribble  v.  Frame,  1  J.  J.  Marsh.  599;  Krevet  v. 
Meyer,  24  Mo.  107;  Fuhr  u.  Dean,  26  Mo.  116.    But  where  force  is  used 
after  a  peaceable  entry  to  eject  a  tenant,  it  is  lawful  and  will  not  sustain 
a  prosecution  for  assault  and  battery.     Stearns  v.  Sampson,  59  Me.  569 
(8  Am.  Rep.  442). 

§    16 


36      GOVERNMENT  REGULATION   OF   PERSONAL   SECURITY. 

woman.  The  foetus  is  part  of  the  body  of  the  woman  and  an 
unnatural  expulsion  of  it  inflicts  injury  upon  the  mother. 
But  since  the  maxim  of  the  law  is,  volenti  nonfit  injuria, 
there  is  at  common  law  no  crime  of  assault  and  battery 
against  the  woman,  where  she  procures  or  assents  to  the 
abortion.  But  abortion  involves  also  the  destruction  of 
the  life-germ  of  the  foetus,  which  is  considered,  even  by  the 
common  law,  to  be  a  living  human  being  for  certain  pur- 
poses. Mr.  Blackstone  says:  "Even  an  infant  in  venire 
sa  mere,  or  in  the  mother's  womb,  is,  for  many  purposes, 
which  will  be  specified  in  the  course  of  these  commentaries, 
treated  in  law  as  if  actually  born."  *  But  the  foetus  was  not 
supposed  to  have  such  an  actual  separate  existence  as  to 
make  abortion  a  crime  against  the  unborn  child,  until  it  had 
reached  that  stage  of  its  growth  when  it  is  said  to  "  quicken." 
Consequently  at  common  law,  where  an  abortion  is  com- 
mitted upon  a  woman,  with  her  consent,  before  the  child  had 
quickened,  it  is  no  crime  unless  the  death  of  the  mother 
ensues.2  The  crime  of  abortion  is  now  regulated  by  statute 
in  the  different  States,  and  is  generally  made  a  crime,  under 
all  circumstances,  to  procure  the  miscarriage  of  a  pregnant 
woman,  whether  she  consents  to  the  act,  or  the  child  has 
not  quickened,  and  even  where  she  herself,  unaided,  attempts 
the  abortion. 

1  1  Bl.  Com.  154. 

2  Commonwealth  ».  Parker,  9  Mete.  263 ;  State  v.  Cooper,  22  N.  J.  L. 
52;  see  Abrams  v.  Foshee,  3  Iowa,  274;  Hatfield  ».  Gano,  15  Iowa,  177; 
People  v.  Jackson,  3  Hill,  92;  Wilson  v.  Iowa,  2  Ohio  St.  319;  Bobbins 
v.  State,  8  Ohio  St.  131;  State  v.  Smith,  32  Me.  369;  Commonwealth  v. 
Wood,  11  Gray,  85;  Mills  v.   Commonwealth,  13  Pa.  St.  631;  State  v. 
Morrow,  40  S.  C.  221;  Com.  ».  Thompson,  159  Mass.  56;  Cave  v.  State, 
33  Tex.  Cr.  Rep.  336;  People   v.  McGonegal,  136  N.  Y.   62.     One   who 
abets  or  assists  in  procuring  an  abortion  is  guilty  of  a  crime.    People 
v.  Vanzile,  73  Hun,  534.     So,  also,  is  the  unsuccessful  attempt  to  com- 
mit an  abortion  a  punishable  crime.    Com.  v.  Tibbetts,  157  Mass.  519. 
And  see  People  v.  McGonegal,  supra,  as  to  the  effect  of  evidence,  that 
the  time  was  not  sufficient  for  the  successful  commission  of  the  crime 
of  abortion. 

§  16 


COMPULSORY    SUBMISSION   TO    MEDICAL    TREATMENT.      37 

§  17.  Compulsory  submission  to  surgical  and  medical 
treatment.  —  Although  it  has  never  been  brought  before 
the  courts  for  adjudication,  it  is  nevertheless  a  most  inter- 
esting question  of  police  power,  whether  a  person  who  is 
suffering  from  disease  can  be  forced  to  submit  to  a  surgical 
operation  or  medical  treatment.  We  can  readily  under- 
stand the  right  of  a  parent  or  guardian  to  compel  a  child  to 
submit  to  necessary  medical  treatment,  and  likewise  the 
right  of  the  guardian  or  keeper  of  an  insane  person  to  treat 
him  in  a  similar  manner.  So  also  can  we  justify  the  exer- 
cise of  force  in  administering  remedies  to  one  who  is  in  the 
delirium  of  fever.  But  can  a  sane,  rational  man  or  woman 
of  mature  age  be  forced  to  submit  to  medical  treatment, 
though  death  is  likely  to  follow  from  the  consequent  neglect? 
If  the  disease  is  infectious  or  contagious,  we  recognize 
without  question  the  right  of  the  State  to  remove  the 
afflicted  person  to  a  place  of  confinement,  where  he  will  not 
be  likely  to  communicate  the  disease  to  others;  l  and  we 
recognize  the  right  of  the  State  to  keep  him  confined,  as 
long  as  the  danger  to  the  public  continues.  Inasmuch  as 
the  confinement  of  such  a  person  imposes  a  burden  upon 
the  community,  all  means  for  lessening  that  burden  may  be 
employed  as  a  legitimate  exercise  of  police  power;  and  if  a 
surgical  operation  or  medical  treatment  be  necessary  to  effect 
a  cure,  the  patient  cannot  lawfully  resist  the  treatment. 

Not  only  is  this  true,  but  it  seems  that  medical  and 
surgical  treatment  can  be  prescribed,  against  the  con- 
sent of  the  individual,  as  a  preventive  of  contagious  and 
infectious  diseases.  Thus  in  England,  and  probably  in 
some  of  the  United  States,  vaccination  has  been  made 
compulsory.2  When  one  remembers  the  terrible  scourges 

1  See  post,  §  44. 

2  In  Montreal,  Canada,  during  the  winter  of  1885-86,  the  enforcement 
of  such  a  law  was  resisted  by  a  large  part  of  the  population,  and  serious 
riots  ended.    It  has  been  made  optional  in  England  by  recent  statute 
(1898). 

§    17 


38      GOVERNMENT    REGULATION    OF   PERSONAL    SECURITY. 

suffered  from  small-pox  in  the  past,  and  thinks  of  the 
moderation  and  control  of  them  effected  by  a  general  vac- 
cination of  the  people,  no  one  would  hesitate  to  answer 
all  philosophical  objections  to  compulsory  vaccination  by 
an  appeal  to  the  legal  m;ixim,  solus  populi  supremo,  lex. 
In  the  United  States,  school  boards  have  been  very  gen- 
erally authorized  by  statute  to  exclude  children  from  the 
privileges  of  the  public  schools,  who  have  not  been  vac- 
cinated. This  law  has  been  contested  in  a  number  of 
cases,  on  the  ground  that  it  was  an  unconstitutional  inter- 
ference with  personal  rights.  But,  in  every  case,  the  con- 
stitutionality of  this  exercise  of  police  power  has  been  sus- 
tained.1 And  in  Georgia  a  city  ordinance  was  sustained 
which  required  every  one  to  submit  to  vaccination  when 
the  small-pox  was  epidemic.2 

A  number  of  decisions  have  sustained  the  constitutional- 
ity of  laws,  which  made  vaccination  compulsory  upon  school 
children.3  The  opposition  to  compulsory  vaccination  seems 

1  Bissell  0.  Davison,  65  Conn.  183;  In  re  Walters,  84  Han,  457;  Duf- 
fleld  v.  School  Dist.  of  Williamsport,  162  Pa.  St.  476;   Abeel  v.  Clark,  84 
Cal.  226.    In  Illinois  it  has  been  held  that  a  school  board  cannot  require 
vaccination  as  a  condition  precedent  to  the  attendance  of  a  child  upon 
the  public  school,  except  where  small -pox  is  epidemic  in  the  place. 
People  ».  Board  of  Education,  177  111.  572.  . 

2  Morris  v.  City  of  Columbus,  102  Ga.  792. 

8  On  the  general  question  of  the  constitutionality  of  law,  requiring  all 
school  children  to  be  vaccinated,  see  Nissley  v.  School  Directors,  18  Pa. 
Co.  Ct.  481 ;  5  Pa.  Dist.  732 ;  Sprague  v.  Baldwin,  18  Pa.  Co.  Ct.  568 ;  Duffield 
«.  Williamsport  School  Dist.,  162  Pa.  St.  476;  Bissell  v.  Davison,  65  Conn. 
183;  In  re  Rebenack,  62  Mo.  App.  8;  Morris  v.  City  of  Columbus  (Ga. 
99),  30  S.  E.  850;  Miller  v.  School  Dist.,  5  Wyo.  217.  There  must,  of 
course,  be  an  express  statutory  authority,  in  order  to  justify  a  board  of 
health  in  forcing  vaccination  upon  unwilling  patients.  State  v.  Burdge, 
95  Wis.  390.  And  where  compulsory  vaccination  is  provided  for  in 
general  terms,  it  can  be  enforced  against  school  children  only  on  the 
occasion  of  a  small  pox  epidemic.  A  resolution  of  a  school  board, 
under  such  a  law,  denying  the  privileges  of  the  school  to  children  at 
oiher  times,  who  do  not  produce  a  certificate  of  vaccination,  is  void  and 
without  authority.  Potts  v.  Breen,  167  111.  67;  47  N.  E.  81.  But  it  is 
lawful,  however,  to  require  at  all  times  such  a  certificate  of  vaccination 
§  17 


COMPULSORY    SUBMISSION    TO    MEDICAL    TREATMENT.      39 

to  be  growing,  under  the  fostering  care  of  the  Anti- 
Vaccination  League ;  and  the  writer  has  received  from  its 
secretary  a  number  of  pamphlets  and  other  communica- 
tions, which  were  intended  to  demonstrate  the  inequity  of 
vaccination  in  general  and  of  compulsory  vaccination  in 
particular.  In  accordance  with  the  principles  set  forth  in 
the  text  in  the  present  section,  there  could  be  no  more 
outrageous  violation  of  personal  security,  which  is  guar- 
anteed by  all  American  constitutions,  than  the  compulsory 
vaccination  of 'an  unwilling  victim,  if  it  could  be  proved 
that  vaccination  was  not  only  futile  as  a  protection  against 
the  loathsome  disease  of  small-pox,  but  positively  injurious 
to  the  health  of  the  subject.  The  proof  of  the  futility  of 
vaccination  would  alone  take  away  all  constitutional  justi- 
fication of  compulsory  vaccination.  But  the  opponents  of 
vaccination  are  confronted  with  the  testimony  in  its  favor 
of  the  most  prominent  physicians  of  the  world,  who  un- 
hesitatingly pronounce  the  treatment  to  be  efficacious  in 
reducing  the  dangers  of  contagion  and  the  mortality  from 
small-pox;  while  they  declare  it  to  be  in  no  way  injurious  to 
the  health  of  the  subject. 

In  the  face  of  such  an  array  of  expert  testimony,  it  is 
not  surprising  that  the  courts  have  uniformly  sustained  the 
constitutionality  of  laws,  which  make  vaccination  compul- 
sory. This  expert  testimony  may  be  erroneous,  as  expert 
testimony  often  is  ;  but  its  unreliability  must  be  proven 
to  the  courts,  in  order  to  successfully  resist  the  enforce- 
ment of  vaccination  laws. 

For  the  same  reason,  viz. :  the  preservation  of  the 
health  and  life  of  others,  where  medical  attendance  and 
surgical  operations  are  necessary  to  procure  the  successful 
delivery  of  a  child,  the  consent  of  the  woman  is  not  nec- 
essary. The  saving  of  her  life  and  the  life  of  the  child  is 


when  it  is  authorized  by  statute.    Lawbaugb  v.  Board  of  Education,  66 
111.  App.  159. 

§   17 


40      GOVERNMENT   REGULATION   OF  PERSONAL   SECURITY. 

a  sufficient  justification  for  this  invasion  of  the  right  of 
personal  security.  But  where  the  neglect  of  medical  treat- 
ment will  not  cause  any  injury  to  others,  it  is  very  ques- 
tionable if  any  case  can  be  suggested  in  which  the  employ- 
ment of  force,  in  compelling  a  subjection  to  medical 
treatment  of  one  who  refused  to  submit,  could  be  justified, 
unless  it  be  upon  the  very  uncertain  and  indefinite  ground 
that  the  State  suffers  a  loss  in  the  ailment  of  each  inhabit- 
ant, which  may  be  guarded  against  or  cured  by  the  proper 
medical  treatment. 

§  18.   Security  to  health  —  Legalized  nuisance.  —  The 

security  against  all  causes  of  injury  to  health  and  bodily 
comfort  is  also  highly  essential  to  human  happiness,  and 
those  acts  of  individuals  which  produce  injury  to  health, 
or  seriously  interfere  with  bodily  comfort,  are  called  nui- 
sances and  are,  as  a  general  rule,  prohibited.  But  it  is  not 
every  annoyance  to  health  and  comfort,  which  constitutes 
a  nuisance.1  Where  the  annoyance  proceeds  from  some 
natural  cause,  and  is  not  the  consequence  of  an  act  of  some 
individual,  it  is  no  nuisance,  if  the  public  or  private  owner 
should  fail  to  remove  the  cause  of  annoyance.2  Thus,  it  is 
not  actionable,  if  the  owner  of  swamp  lands  fails  to  drain 
his  lands,  and  in  consequence  the  neighbors  are  made  sick 
by  the  injurious  exhalations.3  Nor  is  it  any  ground  for  an 
action  against  a  municipal  corporation,  that  it  has  failed  to 
provide  proper  remedies  for  the  prevention  of  nuisances  and 
other  annoyances  to  health  and  bodily  comfort.4  And 

1  See  post,  §  145,  for  a  more  thorough  discussion  of  nuisances. 

2  See  post,  §  154,  in  respect  to  the  power  of  the  State  to  compel  the 
owner  of  land  to  remove  natural  causes  of  annoyance. 

3  Reeves  v.  Treasurer,  8  Ohio  St.  333. 

*  Roberts  v.  Chicago,  26  111.  249. .  See  Wilson  v.  New  Fork,  1  Denio, 
595;  Mills  v.  Brooklyn,  32  N.  Y.  489;  Carr  v.  Northern  Liberties,  35 
Pa.  St.  824;  Detroit  v.  Michigan,  34  Mich.  125;  Delphi  v.  Evans,  36 
Ind.  90;  Cotes  v.  Davenport,  9  Iowa,  227;  Lamber  v.  St.  Louis,  15  Mo. 
610;  White  v.  Yazoo,  27  Miss.  357. 
§  18 


SECURITY  TO   HEALTH.  41 

although,  as  a  general  proposition,  no  one  has  aright  to  do 
any  act  which  will  cause  injury  to  the  health  or  disturb 
seriously  the  bodily  comfort  or  mental  quietude  of  another, 
yet  this  right  of  security  to  health  and  comfort  cannot  be 
left  absolute  in  a  state  of  organized  society.  It  must 
give  way  to  the  reasonable  demands  of  trade,  commerce, 
and  the  other  vital  interests  of  society.  While  the  State 
cannot  take  away  absolutely  the  private  rights  of  individ- 
uals by  the  legalization  of  nuisance,1  yet  in  most  cases 
of  nuisances,  affecting  the  personal  health  and  comfort, 
there  is  involved  the  consideration  of  what  constitutes 
a  reasonable  use  of  one's  property,  and  that  is  a  ques- 
tion of  fact,  the  answer  to  which  varies  according  to  the 
circumstances  of  each  case.  One  is  expected  to  submit 
to  a  reasonable  amount  of  discomfort  for  the  convenience 
or  benefit  of  his  neighbor.  If  a  discomfort  were  wantonly 
caused  from  malice  or  wickedness,  a  slight  degree  of  incon- 
venience might  be  sufficient  to  render  it  actionable ;  but  if 
it  were  to  result  from  pursuing  a  useful  employment  in  a 
way  which  but  for  the  discomfort  to  others  would  be  rea- 
sonable and  lawful,  it  is  perceived  that  the  position  of 
both  parties  must  be  regarded,  and  that  what  would  have 
been  found  wholly  unreasonable  before  may  appear  to  be 
clearly  justified  by  the  circumstances.2  Instead  of  being 
a  question  of  personal  health  and  comfort  on  the  one  hand, 
and  a  profitable  use  of  property  on  the  other  hand,  the 
question  is,  on  whom  in  equity  should  the  loss  fall,  where 
two  adjoining  or  contiguous  land  proprietors  find  their  in- 
terests clashing  in  the  attempted  use  of  the  land  by  one 
for  a  purpose  or  trade,  which  causes  personal  discomfort  to 
the  other,  who  is  residing  upon  his  land.  The  injury  to 
the  personal  comfort  and  health  is  not  in  such  a  case  an 
absolute  one.  For,  as  was  said  by  the  court  in  one  of  the 

1  See  Cooley  on  Torts,  616. 
3  Cooley  on  Torts,  596. 

§    18 


42      GOVERNMENT    REGULATION   OF   PERSONAL    SECURITY. 

leading  cases,1  "the  people  who  live  in  such  a  city,  i.  e., 
where  the  principal  industry  consists  of  manufactures,  or 
within  its  sphere  of  influence,  do  so  of  choice,  and  they 
voluntarily  subject  themselves  to  its  peculiarities  and  its 
discomforts  for  the  greater  benefits  they  think  they  derive 
from  their  residence  or  business  there."  If  a  noisome  or 
unhealthy  trade  is  plied  in  a  part  of  a  city,  which  is  given 
up  principally  to  residences,  it  might  be  considered  a  nui- 
sance, while  the  same  trade  might,  in  a  less  populous  neigh- 
borhood, or  in  one  which  is  devoted  to  trade  and  manufac- 
turing, be  considered  altogether  permissible.2 


SECTION  19.  Security  to  reputation  —  Privileged  communications. 

20.  Privilege  of  legislators. 

21.  Privilege  in  judicial  proceedings. 

22.  Criticism  of  officers  and  candidates  for  office. 

23.  Publication  through  the  press. 

§  19.  Security  to  reputation  —  Privileged  communica- 
tions. —  A  man's  reputation,  the  opinion  entertained  of 
him  by  his  neighbors,  is  another  valuable  possession,  and  the 

1  Huckenstein's  Appeal,  70  Pa.  St.  102  (10  Am.  Rep.  669). 

2  St.  Helen's  Smelting  Co.  v.  Tipling,  11  H.  L.  Gas.  642;   Whitney  v. 
Bartholomew,  21  Conn.  213;  McKeon  v.  Lee,  51  N.  Y.  300  (10  Am.  Rep. 
659) ;  Huckenstein's  Appeal,  70  Pa.  St.  102  (10  Am.  Rep.  669) ;   Gilbert 
v.  Showermau,  23  Mich.  448;  Eirkman  v.  Handy,  11  Humph.  406;  Cooley 
on  Torts,  596-606 ;  1  Dillon's  Municipal  Corp.,  §  374,  note.    "  If  one  lives 
in  a  city  he  must  expect  to  suffer  the  dirt,  smoke,  noisome  odors,  noise 
and  confusion  incident  to  city  life.    As  Lord  Justice  James  beautifully 
said  in  Salvin  v.  North  Brancepeth  Coal  Co.,  L.  M.  9  Ch.  Ap.  705, '  if  some 
picturesque  haven  opens  its  arms  to  invite  the  commerce  of  the  world,  it 
is  not  for  this  court  to  forbid  the  embrace,  although  the  fruit  of  it  should 
be  the  sights  and  sounds  and  smells  of  a  common  seaport  and  ship- 
building town,  which  would  drive  the  Dryads  and  their  masters  from 
their  ancient  solitude.'  "    Earl,  J.,  in  Campbell  v.  Seaman,  63  N.  Y.  568. 

3  In  this  and  succeeding  sections,  which  relate  to  security  to  reputa- 
tation,  the  law  has  remained  unchanged,  and,  as  the  inclusion  of  this 
subject  in  the  present  volume  may  be  considered  as  a  reduction  of  it  to 
an  academic  question,  I  have  not  attempted  to  collect  the  later  cases 
which  have  involved  these  questions. 

6   19 


SECURITY   TO    REPUTATION.  43 

security  to  which  is  most  jealously,  but,  it  must  be  con- 
fessed in  most  cases,  ineffectually  guarded  against  infrac- 
tions. The  breath  of  suspicion,  engendered  by  a  slander- 
ous lie,  will  tarnish  a  fair  name,  long  after  the  injurious 
statement  has  been  proved  to  be  an  unfounded  falsehood. 
But  the  aim  of  all  legislation  on  the  subject  is  to  provide 
the  proper  protection  against  slander  and  libel,  and  failure 
in  ordinary  cases  is  caused  by  the  poverty  of  the  means  of 
penal  judicature,  and  does  not  arise  from  any  public  indif- 
ference. But  dear  to  man  as  is  the  security  to  reputation, 
there  are  cases  in  which  it  must  yield  to  the  higher  demands 
of  public  necessity  and  general  welfare.  Malice  is  gener- 
ally inferred  from  a  false  and  injurious  statement  or 
publication,  and  the  slanderer  and  libeler  are  punished 
accordingly.  But  there  are  special  cases,  in  which  for  rea- 
sons of  public  policy,  or  on  account  of  the  rebuttal  of  the 
presumption  of  malice  by  the  co-existence  of  a  duty  to 
speak  or  an  active  interest  in  the  subject,  the  speaker  or 
writer  is  held  to  be  "  privileged,"  that  is,  relieved  from 
liability  for  the  damage  which  has  been  inflicted  by  his  false 
charges.  These  privileged  communications  are  divided 
into  two  classes :  first,  those  which  are  made  in  a  public  or 
official  capacity,  and  which  for  reasons  of  public  policy  are 
not  permitted  to  be  the  subject  of  a  judicial  action ;  and  sec- 
ondly, all  those  cases  in  which  the  circumstances  rebut  the 
presumption  of  malice.  In  these  cases  of  the  second  class, 
the  privilege  is  only  partial.  As  already  stated,  the  circum- 
stances are  held  to  rebut  the  presumption  of  malice,  and 
throws  upon  the  plaintiff  the  burden  of  proving  affirma- 
tively that  the  defendant  was  actuated  by  malice  in  making 
the  false  statement  which  has  injured  the  plaintiff's  reputa- 
tion. In  these  cases  the  proof  of  express  malice  revives 
the  liability  of  the  alleged  slanderer.1  As  Mr.  Cooley  says, 

1  "  It  properly  signifies  this  and  nothing  more;  that  the  excepted  in- 
stances shall  so  far  change  the  ordinary  rule  with  respect  to  slanderous 
or  libelous  matter  as  to  remove  the  regular  and  usual  presumption  of 

§    19 


44      GOVERNMENT    REGULATION   OF   PERSONAL   SECURITY. 

"  they  are  generally  cases  in  which  a  party  has  a  duty  to 
discharge  which  requires  that  he  should  be  allowed  to 
speak  freely  and  fully  that  which  he  believes ;  or  where  he 
is  himself  directly  interested  in  the  subject-matter  of  the 
communication,  and  makes  it  with  a  view  to  the  protection 
or  advancement  of  his  own  interest,  or  where  he  is  com- 
municating confidentially  with  a  person  interested  in  the  com- 
munication, and  by  way  of  advice." l  The  cases  of  a  private 
nature  are  very  numerous,  and  for  a  full  and  exhaustive 
discussion  of  them,  reference  must  be  made  to  some  work 
on  slander  and  libel.  Under  this  rule  of  exemption  are 
included  answers  to  inquiries  after  the  character  of  one  who 
had  been  employed  by  the  person  addressed,  and  who  is 
soliciting  employment  from  one  who  makes  the  inquiry,2 
the  answer  of  all  inquiries  between  tradesmen  concerning 
the  financial  credit  and  commercial  reputation  of  persons 
who  desire  to  enter  into  business  dealings  with  the  in- 
quirers.3 While  the  private  reports  of  mercantile  agencies 
are  privileged,4  the  published  reports  of  such  agencies, 
which  are  distributed  among  the  customers,  are  held  not  to 
constitute  one  of  the  privileged  classes.6 

All  bona  fide  communications  are  privileged,  where  there 
is  a  confidential  relation  of  any  kind,  existing  between  the 
parties  in  respect  to  the  subject-matter  of  the  inquiry. 

malice,  and  to  make  it  incumbent  on  the  party  complaining  to  show 
malice."  Daniel,  J.,  in  White  v.  Nichols,  3  How.  266,  287.  See  Lewis 
v.  Chapman,  16  N.  Y.  369. 

1  Cooley  Const.  Lira.  425. 

2  Pattison  v.  Jones,  8  B.  &  C.  678;  Bradley  v.  Heath,  12  Pick.  163; 
Hatch  v.  Lane,  105  Mass.  394;  Elam  v.  Badger,  23111.  498;  Noonan  v. 
Orton,  32  Wis.  106.     So  also  is  a  subsequent  communication  to  one  who 
had  employed  a  clerk  upon  the  former's  recommendation,  of  the  facts 
which  have  induced  a  change  of  opinion.    Fowles  v.  Bowen,  30  N.  Y.  20. 

3  Smith  v.  Thomas,  2  Bing.  N.  C.  372;  White  v.  Nichols,  3  How.  266; 
Cooley  on  Torts,  216. 

4  Lewis  v.  Chapman,  16  N.  Y.  369;  Ormsby  v.  Douglass,  37  N.  Y.  477. 
6  Taylor  r.  Church,  8  N.  Y.  452;  Sunderlin  v.  Bradstreet,  46  N.  Y.  188 

(7  Am.  Rep.  322).     See  note  2,  p.  55. 
§    19 


PRIVILEGE   OF   LEGISLATORS.  45 

'« All  that  is  necessary  to  entitle  such  communications  to 
be  regarded  as  privileged  is,  that  the  relation  of  the  parties 
should  be  such  as  to  afford  reasonable  ground  for  supposing 
an  innocent  motive  for  giving  the  information,  and  to  de- 
prive the  act  of  an  appearance  of  officious  intermeddling 
with  the  affairs  of  another."  1 

The  first  class  of  privileged  communications,  enumerated 
above,  is  absolutely  privileged,  and  there  is  no  right  of 
action,  even  though  the  false  statement  is  proved  to  be 
prompted  by  malice.  They  are  few  in  number,  and  the 
privilege  rests  upon  public  policy,  and  usually  have  refer- 
ence to  the  administration  of  some  branch  of  the  govern- 
ment. They  will  be  discussed  in  a  regular  order. 

§20.  Privilege  of  legislators. — In  order  that  the 
legislator  may,  in  the  performance  of  his  official  duties,  feel 
himself  free  from  all  restraining  influences  and  able  to  act 
without  fear  or  favor  of  anyone  whatsoever,  it  is  usually  pro- 
vided by  a  constitutional  clause  that  he  shall  not  be  sub- 
jected elsewhere  to  any  legal  liability  for  any  statement  he 
may  have  made  in  speech  or  debate.2  Inasmuch  as  this  ab- 
solute privilege  is  established  in  behalf  of  the  legislator, 
not  for  his  own  benefit,  but  with  a  view  to  promote  the 
public  good,  and  inasmuch  as  the  houses  of  Congress  and 

1  Lewis  v.  Chapman,  16  N.  Y.  369.     See  Todd  v.   Hawkins,  8  C.  &  P. 
88;  Cockagne  v,  Hodgkisson,  5  C.  &  P.  643;  Klinck  w.  Colby,  46  N.  Y.  274 
(7  Am.  Rep.  360);  Joannes  v.  Bennett,  5  Allen,  170;  Hatch  v.  Lane,  105 
Mass.  394;  Fitzgerald  v.  Robinson,  112  Mass.  371;  State  v.  Burnham,  9 
N.  H.  34;  Knowles  v.  Peck,  42  Conn.   386  (19  Am.  Rep.  542);  Goslinw. 
Cannon,  1  Harr.  3;  Grimes  v.  Coyle,  6  B.  Mon.  301;  Rector  v.  Smith,  11 
Iowa,  302. 

2  The  provision  in  the  United  States  constitution  is,  "  And  for  any 
speech  or  debate  in  either  house,  they  (the  members  of  Congress)  shall 
not  be  questioned  In  any  other  place."     U.  S.  Const,  art.  I.,  §  6.     It  is 
believed  that  similar  provisions  are  to  be  found  in  every  State  constitu- 
tion having  reference  to  members  of  State  legislatures,  except  those  of 
North  Carolina,   South   Carolina,    Mississippi,   Texas,    California  and 
Nevada.    Cooley  Const.  Lim.  *446,  note  1. 

§    20 


46      GOVERNMENT   REGULATION    OF   PERSONAL    SECURITY. 

of  the  State  legislatures  have  the  power  to  punish  their 
members  for  disorderly  behavior  and  unparliamentary  lan- 
guage, a  most  liberal  construction  is  given  to  this  constitu- 
tional provision.  "  These  privileges  (the  privilege  of  leg- 
islators from  arrest  and  from  liability  for  false  statements 
in  speech  or  debate)  are  thus  secured,  not  with  the  inten- 
tion of  protecting  the  members  against  prosecutions  for 
their  own  benefit,  but  to  support  the  rights  of  the  people, 
by  enabling  their  representatives  to  execute  the  functions 
of  their  office  without  fear  of  prosecutions  civil  or  criminal. 
I  therefore  think  that  the  article  ought  not  to  be  construed 
strictly,  but  liberally,  that  the  full  design  of  it  may  be  an- 
swered. I  will  not  confine  it  to  delivering  an  opinion,  ut- 
tering a  speech,  or  haranguing  in  debate,  but  will  extend  it 
to  the  giving  of  a  vote,  to  the  making  of  a  written  report, 
and  to  every  other  act  resulting  from  the  nature  and  in  the 
execution  of  the  office ;  and  I  would  define  the  article  as  se- 
curing to  every  member  exemption  from  prosecution  for 
everything  said  or  done  by  him,  as  a  representative,  in  the 
exercise  of  the  functions  of  that  office,  without  inquiring 
whether  the  exercise  was  regular  and  according  to  the  rules 
of  the  house,  or  irregular  and  against  their  rules.  I  do  not 
confine  the  member  to  his  place  in  the  house,  and  lam  sat- 
isfied that  there  are  cases  in  which  he  is  entitled  to  this 
privilege  when  not  within  the  walls  of  the  representatives* 
chamber.  He  cannot  be  exercising  the  functions  of  his 
office  as  the  member  of  a  body,  unless  the  body  be  in 
existence.  The  house  must  be  in  session  to  enable  him  to 
claim  this  privilege,  and  it  is  in  session,  notwithstanding 
occasional  adjournments  for  short  intervals  for  the  conve- 
nience of  its  members.  If  a  member,  therefore,  be  out  of 
the  chamber,  sitting  in  committee,  executing  the  commis- 
sion of  the  house,  it  appears  to  me  that  such  a  member  is 
within  the  reason  of  the  article,  and  ought  to  be  considered 
within  the  privilege.  The  body  of  which  he  is  a  member  is 
in  session,  and  he,  as  a  member  of  that  body,  is  in  fact  dis- 
§  20 


PRIVILEGE    IN    JUDICIAL    PROCEEDINGS.  47 

charging  the  duties  of  his  office.  He  ought,  therefore,  to 
be  protected  from  civil  or  criminal  prosecutions  for  every- 
thing said  or  done  by  him  in  the  exercise  of  his  functions, 
as  a  representative,  in  debating  or  assenting  to  or  drafting 
a  report.  Neither  can  I  deny  the  member  his  privilege 
when  executing  the  duties  of  his  office,  in  convention  of 
both  houses,  although  the  convention  should  be  holden  in 
the  senate  chamber."  l  But  even  to  so  absolute  a  privilege 
as  this,  there  is  a  limitation.  Because  a  man  holds  the  posi- 
tion of  a  legislator,  the  public  interests  do  not  require  that 
he  be  given  unlimited  license  to  slander  whom  he  pleases, 
and  to  screen  himself  from  a  just  retribution  under  his  leg- 
islative privilege.  It  is  only  when  he  is  acting  in  his  official 
capacity,  that  he  can  claim  this  protection.  If,  therefore, 
the  slanderous  statement  has  no  relevancy  to  any  public  busi- 
ness or  duty,  is  not  even  remotely  pertinent  to  public  ques- 
tions then  under  discussion,  the  legislator  in  his  utterance 
of  them  subjects  himself  to  civil  and  criminal  liability.2  A 
similar  exemption  from  responsibility  for  official  utter, 
ances  is  guaranteed  to  the  President  of  the  United  States 
and  to  the  governors  of  the  several  States.3 

§  21.  Privilege  in  judicial  proceedings. — The  object 
of  all  judicial  proceedings  is  the  furtherance  of  justice  by 
preventing  or  punishing  wrongs  and  providing  protection 
to  rights.  Although  the  law  does  not  support,  and  is  not 
designed  to  foster,  a  litigious  spirit,  yet  whenever  one,  from 
all  the  facts  within  his  knowledge,  is  justified  in  believing 
that  he  has  suffered  a  wrong;  in  other  words,  if  the  facts 

1  Coffla  v.  Coffin,  4  Mass.  1,  27  (3  Am.  Dec.  189).  The  constitutional 
provision,  which  was  in  force  when  this  case  arose,  was  as  follows: 
"  The  freedom  of  deliberation,  speech  and  debate  in  either  house,  can- 
not be  the  foundation  of  any  accusation  or  prosecution,  action  or  com- 
plain,t,  in  any  other  court  or  place  whatever." 

8  Coffin  v.  Coffin,  4  Mass.  1  (3  Am.  Dec.  189) ;  State  v.  Burnham,  9 
N.  H.  34;  Perkins  v.  Mitchell,  31  Barb.  461. 

3  Cooley  on  Torts,  214. 

§   21 


48       GOVERNMENT    REGULATION    OF   PERSONAL    SECURITY. 

within  his  knowledge  make  out  a  prima  facie  cause  of 
action,  he  has  a  right  to  call  to  his  aid  the  whole  power  of 
the  law  in  the  protection  and  enforcement  of  his  rights,  and 
it  is  to  the  public  interest  that  a  sufficient  remedy  be  pro- 
vided, and  a  resort  to  the  courts  be  encouraged,  in  order  to 
diminish  the  temptation,  which  is  always  present,  to  re- 
dress one's  own  wrongs.  Now,  if  one,  in  stating  his  cause 
of  action  to  the  court,  will  subject  himself  to  liability  for 
every  mistake  of  fact  that  he  might  innocently  make, 
appeals  to  the  courts  in  such  cases  would  thus  be  discour- 
aged. It  is  therefore  consonant  with  the  soundest  public 
policy,  to  protect  from  civil  liability  all  false  accusations 
contained  in  the  affidavits,  pleadings,  and  other  papers, 
which  are  preliminary  to  the  institution  of  a  suit.  But  the 
courts  are  not  to  be  made  the  vehicles  for  slanderous  vilifi- 
cation, and  hence  the  false  accusations  are  privileged  only 
when  made  in  good  faith,  with  the  intention  to  prosecute, 
and  under  circumstances,  which  induced  the  affirmant,  as  a 
reasonably  prudent  man,  to  believe  them  to  be  true.  The 
good  faith  rebuts  the  presumption  of  malice,  and  the  affiant 
is  protected  under  his  privilege,  as  long  as  the  statement 
is  pertinent  to  the  cause  of  action,  and  where  he  is  not 
actuated  by  malice  in  making  it.  If  the  statement  is  not 
pertinent,  or  if  express  malice  be  proved,  the  liability 
attaches.1  All  allegations  in  pleadings,  if  pertinent,  are 
said  to  be  absolutely  privileged,2  except  where  the  libelous 

1  Kine  o.  Sewell,  3  Mees.  &  W.  297;  Kidder  v.  Parkhurst,  3  Allen,  393; 
Worthington  v.  Scribner,  108  Mass.  487  (12  Am.  Rep.  736) ;  Barnes  v. 
Whittaker,  123  Mass.  342;  Jarvis  v.  Hathaway,  3  Johns.  180;  Allen  v. 
Crofoot,  2  Wend.  615;  Burlingame  v.  Burlingame,  8  Cow.  141;  Garr  v. 
Selden,  4  N.  Y.  91 ;  Maurice  v.  Worden,  54  Md.  233  (39  Am.  Rep.  384) ; 
Vaussee  v.  Lee,  1  Hill  (S.  C.),  197  (26  Am.  Dec.  168) ;  Marshall  v.  Gunter, 
6  Rich.  419;  Lea  ».  Sneed,  4  Sneed,  111;  Grimes  v.  Coyle,  6  B.  Mon.  301; 
Bunton  v.  Worley,  4  Bibb,  38  (7  Am.  Dec.  735) ;  Strauss  v.  Meyer,  48 
111.  385;  Spaids  v.  Barrett,  57  111.  289;  Wyatt  v.  Buell,  47  Cal.  624. 

8  Strauss  p.  Meyer,  48  111.  385;  Lea  v.  White,  4  Sneed,  111;  Forbes  v. 
Johnson,  11  B.  Mon.  48. 

§  21 


PRIVILEGE    IN    JUDICIAL    PROCEEDINGS.  49 

words  in  the  pleadings  refer  to  third  person,  and  not  to 
the  defendant.  Then  they  are  only  privileged,  when  they 
are  pertinent  and  are  pronounced  in  good  faith.1  Not  only 
are  false  statements  privileged,  when  made  in  preliminary 
proceedings,  but  a  false  statement  has  also  been  held  to  be 
privileged,  where  it  has  been  made  to  one,  after  the  com- 
mission of  a  crime,  with  a  view  to  aid  him  in  discovering 
the  offender  and  bringing  him  to  justice.2  And  so,  like- 
wise, is  a  paper  privileged,  which  is  signed  by  several 
persons,  who  thereby  agree  to  prosecute  others,  whose 
names  are  given  in  the  paper,  and  who  are  therein  charged 
with  the  commission  of  a  crime.3 

In  the  same  manner  is  the  report  of  the  grand  jury 
privileged,  notwithstanding,  in  making  it,  they  have  ex- 
ceeded their  jurisdiction.4 

When  the  case  is  called  up  in  court  for  trial,  the  chief 
aim  of  the  proceeding  is  the  ascertainment  of  the  truth,  and 
all  the  protections  thrown  around  the  dramatis  personce  in 
a  judicial  proceeding  are  designed  to  bring  out  the  truth, 
and  to  insure  the  doing  of  justice.  We  therefore  find  as  a 
familiar  rule  of  law,  that  no  action  will  lie  against  a  wit- 
ness for  any  injurious  and  false  statement  he  might  make 
on  the  witness  stand.  If  he  is  guilty  of  perjury,  he  sub- 
jects himself  to  a  criminal  liability,  but  in  no  case  does  he 
incur  any  civil  liability.5  But  he  is  only  privileged  when 
the  statement  is  pertinent  to  the  cause  and  voluntarily 

1  McLaughlin  v.  Cowley,  127  Mass.  316;  Davis  «.  McNees,  8  Humph. 
40;  Ruohs  v.  Packer,  6  Heisk.  395  (19  Am.  Rep.  598) ;  Wyatt  r>.  Buell,  47 
Cal.  624. 

8  Goslin  v.  Cannon,  1  Harr.  3. 

s  Klinck  v.  Colby,  46  N.  Y.  427  (7  Am.  Rep.  360). 

*  Rector  v.  Smith,  11  Iowa,  302. 

6  Dunlap  v.  Glidden,  31  Me.  435;  Barnes  v.  McCrate,  32  Me.  442; 
Cunningham  v.  Brown,  18  Vt.  123;  Allen  v.  Crofoot,  2  Wend.  615  (20 
Am.  Dec.  647);  Garr  p.  Selden,  4  N.  Y.  91;  Marsh  v.  Ellsworth,  SON.  Y. 
309;  Grove  v.  Brandenburg,  7  Blackf.  234;  Shock  v.  McChesney,  4  Yeates, 
507  (2  Am.  Dec.  415);  Terry  v.  Fellows,  21  La.  Ann.  875;  Smiths. 
Howard,  28  Iowa,  51. 

4  §    21 


50      GOVERNMENT   REGULATION    OF   PERSONAL    SECURITY. 

offered.  He  is  not  the  judge  of  what  is  pertinent,  and  is 
protected  if  his  statement  is  prompted  by  a  question  of 
counsel,  which  is  not  forbidden  by  the  court.1 

The  statements  of  the  judge  are  privileged  for  similar 
reasons,2  and  in  the  same  manner  are  jurors  privileged  in 
statements  which  they  make  during  their  deliberations 
upon  the  case.8 

The  most  important  case  of  privilege,  in  connection  with 
judicial  proceedings,  is  that  of  counsel  in  the  conduct  of  the 
cause.  In  order  that  the  privilege  may  prove  beneficial  to 
the  party  whom  the  counsel  represents,  it  must  afford  him 
the  widest  liberty  of  speech,  and  complete  immunity  from 
liability  for  any  injurious  false  statement.  It  is,  therefore, 
held  very  generally,  that  the  privilege  of  counsel  is  as  broad 
as  that  of  the  legislator,  and  that  he  sustains  no  civil  liabil- 
ity for  false,  injurious  statements,  however  malicious  an 
intent  may  have  actuated  their  utterance,  provided  they  are 
pertinent  to  the  cause  on  trial.4  Nowhere  is  the  privilege 
of  counsel  more  clearly  elucidated  than  in  the  following  ex- 
tract from  an  opinion  of  Chief  Justice  Shaw:  *«  We  take 
the  rule  to  be  well  settled  by  the  authorities,  that  words 
spoken  in  the  course  of  judicial  proceedings,  though  they  are 
such  as  impute  crime  to  another,  and  therefore,  if  spoken 
elsewhere,  would  import  malice  and  be  actionable  in  them- 
selves, are  not  actionable,  if  they  are  applicable  and  perti- 
nent to  the  subject  of  inquiry.  The  question,  therefore,  in 
such  cases  is,  not  whether  the  words  spoken  are  true,  but 

1  See  Earnest).  McCrate,  32  Me.  442;  Kidder  v.  Parkhurst,  3  Allen, 
393;  White  v.  Carroll,  42  N.  Y.  166  (1  Am.  Rep.  503) ;  Calkins  v.  Suraner, 
13Wis.  193. 

2  Cooley  on  Torts,  214;  Townsbend  on  Slander  and  Libel,  §  227. 
8  Dunham  v.  Powers,  42  Vt.  1;  Rector  v.  Smith,  11  Iowa,  302. 

4  Hastings  v.  Lusk,  22  Wend.  410  (34  Am.  Dec.  380);  Warner  v.  Paine, 
2  Sandf.  196;  Marsh  v.  Ellsworth,  60  N.  Y.  309;  McMillan  v.  Birch,  1  Bin- 
ney,  178  (2  Am.  Dec.  426);  McLaughlin  v.  Cowley,  127  Mass.  316;  Har- 
den v.  Comstock,  2  A.  K.  Marsh.  480  (12  Am.  Dec.  168);  Spaids  v. 
Barnett,  57  111.  289 ;  Jennings  v.  Paine,  4  Wis.  358. 
§  21 


PRIVILEGE    IN    JUDICIAL    PROCEEDINGS.  51 

whether  they  were  spoken  ill  the  course  of  judicial  proceed- 
ings, and  whether  they  are  relevant  or  pertinent  to  the  cause 
or  subject  of  inquiry.  And  in  determining  what  is  perti- 
nent, much  latitude  must  be  allowed  to  the  judgment  and 
discretion  of  those  who  are  intrusted  with  the  conduct  of  a 
cause  in  court,  and  a  much  larger  allowance  made  for  the 
ardent  and  excited  feelings  with  which  a  party  or  counsel, 
who  naturally  and  almpst  necessarily  identifies  himself  with 
his  client,  may  become  animated,  by  constantly  regarding 
one  side  only  of  an  interesting  and  animated  controversy, 
in  which  the  dearest  rights  of  such  a  party  may  become  in- 
volved. And  if  these  feelings  sometimes  manifest  them- 
selves in  strong  invectives,  or  exaggarated  expressions, 
beyond  what  the  occasion  would  strictly  justify,  it  is  to  be 
recollected  that  this  is  said  to  a  judge  who  hears  both  sides, 
in  whose  mind  the  exaggerated  statement  may  be  at  once 
controlled  and  met  by  evidence  and  argument  of  a  contrary 
tendency  from  the  other  party,  and  who,  from  the  impar- 
tiality of  his  position,  will  naturally  give  to  an  exaggerated 
assertion,  not  warranted  by  the  occasion,  no  more  weight 
than  it  deserves.  Still,  this  privilege  must  be  restrained  by 
some  limit,  and  we  consider  that  limit  to  be  this:  that  a 
party  or  counsel  shall  not  avail  himself  of  his  situation  to 
gratify  private  malice  by  uttering  slanderous  expressions, 
either  against  a  party,  witness  or  third  person,  which  have 
no  relation  to  the  cause  or  subject-matter  of  the  inquiry. 
Subject  to  this  restriction,  it  is,  on  the  whole,  for  the  pub- 
lic interest,  and  best  calculated  to  subserve  the  purposes  of 
justice,  to  allow  counsel  full  freedom  of  speech  in  conduct- 
ing the  causes  and  advocating  and  sustaining  the  rights  of 
their  constituents;  and  this  freedom  of  discussion  ought  not 
to  be  impaired  by  numerous  and  refined  distinctions."  l 

1  Hoar  v.  Wood,  3  Mete.  193.  See  Bradley  v.  Heath,  12  Pick.  163; 
Mower  v.  Watson,  11  Vt.  536  (34  Am.  Dec.  704);  Gilbert  v.  People,  1 
Denio,  41;  Ring  v.  Wheeler,  7  Cow.  725;  Hastings  v.  Lusk,  22  Wend.  410 
(34  Am.  Dec.  380)  ;  Stackpole  v.  Hennen,  6  Mart.  (N.  s.)  481  (17  Am.  Dec. 

§    21 


52      GOVERNMENT   REGULATION   OF   PERSONAL    SECURITY. 

While  the  importance  of  an  almost  unrestricted  liberty 
of  speech  to  a  counsel  is  recognized  and  conceded,  and  like- 
wise the  difficulty  in  restraining  abuses  of  the  privilege,  still 
the  commonness  of  the  abuse  would  well  make  the  student 
of  police  power  pause  to  consider,  if  there  be  no  remedy 
which,  while  correcting  the  evil,  will  not  tend  to  hamper 
the  counsel  in  the  presentation  of  his  client's  case.  Per- 
sonal invective  against  one's  opponent,  the  "  browbeating  " 
of  hostile  witnesses,  are  the  ready  and  accustomed  weapons 
of  poor  lawyers,  while  really  able  lawyers  only  resort  to 
them  when  their  cause  is  weak.  If  the  invective  was  con- 
fined to  the  subject-matter  furnished  and  supported  by  the 
testimony  before  the  court,  and  consisted  of  exaggerated 
and  abusive  presentations  of  proven  facts,  while  even  this 
would  seem  reprehensible  to  us,  there  are  no  possible 
means  of  preventing  it.  But  it  is  not  within  the  privilege 
of  counsel  to  gratify  private  malice  by  uttering  slanderous 
expressions,  either  against  a  party,  a  witness  or  a  third 
person,  which  have  no  relation  to  the  subject-matter  of  the 
inquiry.  Counsel  should  be  confined  to  what  is  relevant  to 
the  cause,  whatever  may  be  his  motive  for  going  outside  of 
the  record.  The  courts  are  too  lax  in  this  regard.  No 
legislation  is  needed;  they  have  the  power  in  their  reach  to 
reduce  this  evil,  for  it  is  an  evil,  to  a  minimum.  The  most 
salutary  remedy  would  be  raising  the  standard  of  qualifica- 
tion for  admission  to  the  bar.  The  number  of  poor  lawyers, 
now  legion,  would  be  greatly  reduced,  and  consequently  the 
abuse  of  this  privilege  lessened. 

§  22.   Criticism  of  officers  and  candidates  for  office.  — 

When  a  man  occupies  an  official  position,  or  is  a  candidate 
for  office,  the  people  whom  he  serves,  or  desires  to  serve, 
are  interested  in  his  official  conduct,  or  in  his  fitness  and 

187)  ;  Marshall  v.  Gunter,  6  Rich.  419;  Lester  v.  Thurmond,  51  Ga.  118; 
Ruohs  v.  Backer,  6  Heisk.  395  (19  Am.  Rep.  598);  Lawson  v.  Hicks,  38 
Ala.  279;  Jennings  v.  Paine,  4  Wis.  358. 
§    22 


CRITICISM  OF  OFFICERS  AND  CANDIDATES  FOR  OFFICE.       53 

capacity  for  the  office  to  which  he  aspires.  It  would  seem, 
therefore,  that,  following  out  the  analogy  drawn  from  cases 
of  private  communications,  affecting  the  reputation  of  per- 
sons, in  whom  the  parties  giving  and  receiving  the  commu- 
nications are  interested,  any  candid,  honest,  canvass  of  the 
official's  or  candidate's  character  and  capacity  would  be 
privileged,  and  the  party  making  the  communication  will 
not  be  held  liable,  civilly  or  criminally,  if  it  proves  to  be 
false.  But  here,  as  in  the  case  of  private  communications, 
one  or  the  other  of  the  parties,  who  were  concerned  in  the 
utterance  of  the  slander  or  publication  of  the  libel,  must  have 
been  interested  in  the  subject-matter  of  the  communication. 
In  the  case  of  officials  and  candidates  for  office,  in  order  to 
be  privileged,  the  criticism  must  be  made  by  parties  who 
are  interested  personally  in  the  conduct  and  character  of 
the  official  or  candidate.  The  subject-matter  of  the  com- 
munication must,  therefore,  relate  to  his  official  conduct, 
if  the  party  complained  of  be  an  officer,  and,  if  he  be  a  can- 
didate for  office,  the  communication  should  be  confined  to  a 
statement  of  objections  to  his  capacity  and  fitness  for  office. 
Not  that  in  either  case  the  man's  private  conduct  cannot 
be  discussed  under  a  similar  privilege,  although  such  a  dis- 
tinction is  advocated  in  an  English  case.1  In  this  case, 
Baron  Alderson  says:  "  It  seems  there  is  a  distinction, 
although  I  must  say  I  really  can  hardly  tell  what  the  limits 
of  it  are,  between  the  comments  on  a  man's  public  conduct 
and  upon  his  private  conduct.  I  can  understand  that  you 
have  a  right  to  comment  on  the  public  acts  of  a  minister, 
upon  the  public  acts  of  a  general,  upon  tho  public  judg- 
ments of  a  judge,  upon  the  public  skill  of  an  actor;  I  can 
understand  that ;  but  I  do  not  know  where  the  limit  can  be 
drawn  distinctly  between  where  the  comment  is  to  cease, 
as  being  applied  solely  to  a  man's  public  conduct,  and 
where  it  is  to  begin  as  applicable  to  his  private  character; 

1  Gathercolew.  Miall,  15  Mees.  &  W.319. 

§    22 


54       GOVERNMENT    REGULATION   OF   PERSONAL    SECURITY. 

because,  although  it  is  quite  competent  for  a  person  to 
speak  of  a  judgment  of  a  judge  as  being  an  extremely 
erroneous  and  foolish  one,  —  and  no  doubt  comments  of 
that  sort  have  great  tendency  to  make  persons  careful  of 
what  they  say,  —  and  although  it  is  perfectly  competent 
for  persons  to  say  of  an  actor  that  he  is  a  remarkably  bad 
actor,  and  ought  not  to  be  permitted  to  perform  such  and 
such  parts,  because  he  performs  them  so  ill,  yet  you  ought 
not  to  be  allowed  to  say  of  an  actor  that  he  has  disgraced 
himself  in  private  life,  nor  to  say  of  a  judge  or  of  a  min- 
ister that  he  has  committed  a  felony,  or  anything  of  that 
description,  which  is  in  no  way  connected  with  his  public 
conduct  or  public  judgment ;  and,  therefore,  there  must 
be  some  limits,  although  I  do  not  distinctly  see  where 
those  limits  are  to  be  drawn."  Judge  Cooley,  in  criti- 
cising this  opinion,1  says:  "The  radical  defect  in  this 
rule,  as  it  seems  to  us,  consists  in  its  assumption  that  the 
private  character  of  a  public  officer  is  something  aside  from, 
and  not  entering  into  or  influencing  his  public  conduct; 
that  a  thoroughly  dishonest  man  may  be  a  just  minister, 
and  that  a  judge,  who  is  corrupt  and  debauched  in  private 
life,  may  be  pure  and  upright  in  his  judgments  ;  in  other 
words,  than  an  evil  tree  is  us  likely  as  any  other  to  bring 
forth  good  fruits.  Any  such  assumption  is  false  to  human 
nature,  and  contradictory  to  general  experience;  and  what- 
ever the  law  may  say,  the  general  public  will  still  assume 
that  a  corrupt  life  will  influence  public  conduct,  and  that  a 
man  who  deals  dishonestly  with  his  fellows  as  individuals 
will  not  hesitate  to  defraud  them  in  their  aggregate  and 
corporate  capacity,  if  the  opportunity  shall  be  given  him." 
Where  the  private  character  would  indicate  the  posses- 
sion of  evil  tendencies,  which  can  manifest  themselves  in, 
and  influence,  his  official  conduct  to  the  detriment  of  the 
public,  it  would  seem  but  natural  that  the  same  privilege 

1  Cooley  Const.  Lim.  440. 
§    22 


CRITICISM  OF  OFFICERS  AND  CANDIDATES  FOR  OFFICE.       55 

should  be  extended  to  such  a  communication  concerning  a 
candidate  for  office,  as  if  the  same  evil  tendency  had  been 
manifested  by  some  previous  public  or  official  conduct. 
In  both  cases,  the  conduct  is  brought  forward  as  evidence 
of  the  same  fact,  his  unfitness  for  the  office  to  which  he 
aspires.  But  a  candidate  for  office  may  possess  defects  of 
character,  which  cannot  in  any  way  affect  the  public  wel- 
fare by  influencing  or  controlling  his  official  conduct,  and 
inasmuch  as  the  privilege  is  granted,  if  at  all,  for  the  sole 
purpose  of  promoting  a  free  discussion  of  the  fitness  of  the 
candidate  for  office,  such  an  object  can  be  attained  without 
opening  the  floodgates  of  calumny  upon  a  man,  and  depriv- 
ing him  of  the  ordinary  protection  of  the  law,  because  he 
has  presented  himself  as  a  candidate  for  the  suffrages  of  the 
people.  Thus  while  vulgarity  of  habits  or  speech,  unchas- 
tity,  and  the  like,  may  be  considered  great  social  and  moral 
evils,  they  can  hardly  be  considered  to  affect  a  candidate's 
fitness  for  any  ordinary  office.  Integrity,  fidelity  to  trusts, 
are  not  incompatible  with  even  libertinism,  which  is  attested 
by  the  acts  and  lives  of  some  of  the  public  men  of  every  coun- 
try.1 Whereas  dishonesty,  in  whatever  form  it  may  manifest 
itself,  blind  bigotry,  and  the  like,  do  enter  largely  into  the 
composition  of  one's  official  capacity,  and  consequently  the 
discussion  of  any  acts  which  tend  to  establish  these  charac- 
teristics would  come  within  the  privileges,  although  these 
acts  may  be  of  private  nature.  But,  although  it  may 
be  justifiable  in  charging  a  candidate  with  vulgarity 
or  unchastity,  and  the  like,  if  they  are  true,  there  is 
no  reason  why  they  should  be  privileged,  because  they 
do  not  enter  into  the  determination  of  the  candidate's 


1  Bat  the  retirement  from  public  life  during  the  present  year  (1886) 
of  a  prominent  English  statesman  on  account  of  his  conviction 
of  the  act  of  adultery,  would  indicate  that  public  sentiment  is  chang- 
ing in  this  regard,  and  at  no  distant  day  will  require  that  the 
private  character  of  public  men  shall  be  as  pure  as  their  public  char- 
acter. 

§  22 


56       GOVERNMENT    REGULATION    OF   PERSONAL    SECURITY. 

fitness  for  office,  and  only  raises  a  question  of  prefer- 
ence. 

Where  the  party  is  holding  an  office  instead  of  being  a 
candidate  for  office,  the  only  public  interest  to  be  subserved 
in  the  establishment  of  a  privilege  is  the  faithful  perform- 
ance of  his  official  duty,  and  where  the  office  is  one,  the 
incumbent  of  which  can  only  be  removed  for  malfeasance  in 
office,  only  those  communications  should  be  held  to  be 
privileged,  which  criticise  his  public  conduct.  If,  however, 
the  office  is  appointive,  and  the  incumbent  is  removable  at 
the  pleasure  of  the  appointive  power,  the  privilege  should 
be  as  extensive  as  that  which  should  relate  to  candidates,  as 
already  explained. 

The  foregoing  statement  presents  what  it  is  conceived 
should  be  the  law.  An  investigation  of  the  authorities* 
however,  reveals  a  different  condition  of  the  law.  The 
cases  which  fall  under  the  subject  of  this  section  are 
naturally,  as  well  as  by  the  variance  in  the  authorities, 
divided  into  two  classes:  First,  where  the  office  is  one  of 
appointment,  and  the  criticism  is  contained  in  a  petition  or 
address  to  the  appointing  or  removing  power  ;  and,  secondly , 
where  the  office  is  elective,  and  the  criticisms  appear  in 
publications  of  the  press,  or  are  made  in  speeches  at  public 
meetings,  and  are  intended  to  influence  the  votes  of  the 
electors  at  large,  who  will  be  called  upon  to  pronounce  for 
or  against  the  candidate.  In  the  cases  of  the  first  class,  it 
has  been  very  generally  held  that  the  communications  are 
privileged  as  long  as  they  are  bonafide  statements,  and  the 
burden  of  establishing  malice  in  their  utterance  is  thrown 
upon  the  plaintiff.  The  Supreme  Court  of  New  York 
characterizes  a  contrary  ruling  in  the  court  below,  as  "  a 
decision  which  violates  the  most  sacred  and  unquestionable 
rights  of  free  citizens ;  rights  essential  to  the  very  existence 
of  a  free  government,  rights  necessarily  connected  with  the 
relation  of  constituent  and  representative,  the  right  of 
petitioning  for  a  redress  of  grievances,  and  the  right  of 


CRITICISM  OF  OFFICERS  AND  CANDIDATES  FOR  OFFICE.      57 

remonstrating  to  the  competent  authority  against  the  abuse 
of  official  functions."  1  Not  only  are  these  petitions 
privileged  when  they  are  presented,  but  also  when  they 
are  being  circulated  for  the  purpose  of  procuring  sig- 
natures.2 

This  privilege  is  not  confined  to  communications,  in  the 
form  of  petitions,  which  relate  to  the  incompetency,  and 
call  for  the  removal,  of  public  officials.  It  is  applied  also 
to  similar  cases  arising  in  the  management  and  government 
of  other  and  private  bodies,  whether  incorporated  or  unin- 
corporated. Thus  all  communications  to  church  tribunals 
in  reference  to  the  moral  character  of  its  members,  both 
lay  and  clerical,  are  protected  by  this  privilege  so  as  not 
to  be  actionable,  if  they  were  not  prompted  by  malice.3 
The  same  privilege  protects  a  communication  to  the  lodge 

1  Thorn  v.   Blanchard,  5  Johns.  508.    In  Howard  v.  Thompson,  21 
Wend.  319,  it  was  held  in  order  that  plaintiff  may  sustain  his  action  in 
such  a  case,  he  must  not  only  prove  actual  malice,  but  also  show  the 
want  of  probable  cause,  the  action  being  considered  by  the  court  of  the 
nature  of  an  action  for  malicious  prosecution.     See,  generally,  in  sup- 
port of  the  privilege,  Bodwell  v.  Osgood,  3  Pick.  379  (15  Am.  Dec.  228) ; 
Bradley  v.  Heath,  12  Pick.  163;  Hill  t>.  Miles,  9  N.  H.  9;  State  v.  Burn- 
ham,  9  N.  H.  34  (31  Am.  Dec.  217);  Howard  v.  Thompson,  12  Wend.  545; 
Gray  v.  Pentland,  2  Serg.  &  R.  23;  Van  Arnsdale  v.  Laverty,  69  Pa.  St. 
103;    Harris  v.   Huntington,  2  Tyler,    129    (4   Am.   Dec.    728);   Reid  v. 
DeLorme,  2  Brev.  76;  Forbes  v.  Johnson,  11   B.  Mun.  48;  Whitney  v. 
Allen,  62  111.  472;  Larkin  v.  Noonan,  19  Wis.  82.     In  George  Knapp  & 
Co.  ».  Campbell  (Tex.  Civ.  App.),  36  S.  W.  765,  it  was  held  that  the 
publication  in  a  newspaper  of  false  accusations  against  a  candidate  for 
an  appointive  Federal  office,  was  not  privileged. 

2  Vanderzee  v.  McGregory,  12  Wend.  545;  Street  v.  Wood,  15  Barb. 
105. 

3  Kershaw  v.  Bailey,  1  Exch.  743;  Farnsworth  v.  Storrs,  5  Gush.  412; 
Remington  v.  Congdon,  2  Pick.  310;  York  y.  Pease,  2  Gray,  282;  Fairchild 
v.  Adams,  11  Gush.  549;  Shurtleff  v.  Stevens,  51  Vt.  601  (31  Am.  Rep. 
698)  :  Haight  v.  Cornell,  15  Conn.  74;  O'Donaghue  v.  McGovern,  23  Wend 
26;  Wyick  v.  Aspinwall,  17  N.  Y.  190;  Chapman  v.  Calder,  14  Pa.  St.  365; 
McMillan  v.  Birch,  1  Binn.  178  (2  Am.  Dec.  426);  Reid  v,  DeLorne,  2 
Brev.  76;  Dunn  v.  Winters,  2  Humph.  512;  Lucas  ».  Case,  9  Bush,  562; 
Dial  ».  Holter,  6  Ohio  St.  228;  Kleizer  v.  Symmes,  40  Ind.  562;  Servatius 
v.  Pichel,  34  Wis.  292. 

§    22 


58      GOVERNMENT    REGULATION    OF   PERSONAL   SECURITY. 

of  some  secular  organization,  preferring  charges  against  a 
member.1  In  all  these  cases  the  privilege  only  extends  to 
the  communication  or  petitions,  which  are  presented  to  the 
body  or  person,  in  whom  the  power  of  appointment  and 
removal  is  vested,  and  if  a  petition  is  prepared,  but  never 
presented  to  the  proper  authority,  any  other  publication  of 
it  would  not  be  privileged.2 

There  is  apparently  no  rational  difference,  so  far  as  the 
justification  of  the  privilege  is  concerned,  between  those 
cases,  in  which  there  is  a  remonstrance  or  petition  to  the 
body  or  person  having  the  power  of  appointment  and  re- 
moval, and  the  cases  of  appeal  or  remonstrance  to  the  gen- 
eral public,  pronouncing  the  candidate  for  an  elective  office 
unfit  for  the  same,  either  through  incompetency  or  dis- 
honesty, and  one  would  naturally  expect  such  a  privilege. 
The  electors,  and  the  public  generally,  are  interested  in 
knowing  the  character  and  qualifications  of  those  who 
apply  for  their  suffrages;  and  the  public  welfare,  in  that 
regard,  is  best  promoted  by  a  full  and  free  discussion  of 
all  those  facts  and  circumstances  in  the  previous  life  of  the 
candidate,  which  are  calculated  to  throw  light  upon  his 
fitness  for  the  office  for  which  he  applies.  Where  the 
statements  respect  only  the  mental  qualification  of  the 
candidate,  it  has  been  held  that  they  are  privileged. 
"  Talents  and  qualifications  for  office  are  mere  matters  of 
opinion,  of  which  the  electors  are  the  only  competent 
judges."3  But  where  the  communication  impugns  the 

1  Streety  v.  Wood,  15  Barb.  105;  Kirkpatrick  v.  Eagle  Lodge,  26  Kan. 
384.     A.  report  by  officers  of  a  corporation  to  a  meeting  of  its  stockhold- 
ers falls  under  the  same  rule.    Philadelphia,  etc.,  R.  R.  Co.  v.  Qaigley, 
21  How.  202. 

2  Fairman  v.  Ives,  5  B.  &  Aid.  642 ;  Woodward  v.  Lander,  6  L.  &  P. 
548;  State  v.  Burnham,  9  N.  H.  34;  Hosmer  v.  Loveland,  19  Barb.  Ill; 
Cook  v.  Hill,  3  Sandf.  341. 

3  May  rant  v.  Richardson,  1  Nott  &  McCord,  348  (9  Am.  Dec.  707;; 
Commonwealth  v.  Clapp,  4  Mass.  163  (3  Am.  Dec.  212; ;  Commonwealth 
c.  Morris,  1  Va.  Cas.  175  (5  Am.  Dec.  615) ;  Sweeney  v.  Baker,  13  W.  Va. 

§    22 


CRITICISM  OF  OFFICERS  AND  CANDIDATES  FOR  OFFICE.       59 

character  of  the  candidate,  it  appears  that  the  privilege  does 
Dot  cover  the  case,  and  the  affirmant  makes  the  statement 
at  his  peril,  being  required  by  the  law  to  ascertain  for  him- 
self the  truth  or  falsity  of  it.  And  the  same  rule  applies 
to  the  deliberations  of  public  meetings,  as  well  as  to  the 
statements  of  an  individual.  In  the  leading  case  on  this 
subject 1  the  court  say:  "That  electors  should  have  a 
right  to  assemble,  and  freely  and  openly  to  examine  the  fit- 
ness and  qualifications  of  candidates  for  public  offices,  and 
communicate  their  opinions  toothers,  is  a  position  to  which 
I  most  cordially  accede.  But  there  is  a  wide  difference  be- 
tween this  privilege  and  a  right  irresponsibly  to  charge  a 
candidate  with  direct,  specific,  and  unfounded  crimes.  It 
would,  in  my  judgment,  be  a  monstrous  doctrine  to  estab- 
lish that,  when  a  man  becomes  a  candidate  for  an  elective 
office,  he  thereby  gives  to  others  a  right  to  accuse  him  of 
any  imaginable  crime  with  impunity.  Candidates  have 
rights  as  well  as  electors  ;  and  those  rights  and  privileges 
must  be  so  guarded  and  protected  as  to  harmonize  one  with 
the  other.  If  one  hundred  or  one  thousand  men,  when  as- 
sembled together,  may  undertake  to  charge  a  man  with 
specific  crimes,  I  see  no  reason  why  it  should  be  less  crimi- 
nal than  if  each  one  should  do  it  individually  at  different 
times  and  places.  All  that  is  required  in  the  one  case  or 
the  other  is,  not  to  transcend  the  bounds  of  truth.  If  a 
man  has  committed  a  crime,  any  one  has  a  right  to  charge 
him  with  it,  and  is  not  responsible  for  the  accusation;  and 
can  any  one  wish  for  more  latitude  than  this?  Can  it  be 
claimed  as  a  privilege  to  accuse  ad  libitum  a  candidate  with 
the  most  base  and  detestable  crimes?  There  is  nothing 
upon  the  record  showing  the  least  foundation  or  pretense 
for  the  charges.  The  accusation,  then,  being  false,  the 

158  (31  Am.  Rep.  757) ;  Mott  v.  Dawson,  46  Iowa,  533.     But  see  Robbins 
v.  Treadway,  2  J.  J.  Marsh.  540  (19  Am.  Dec.  152)  ;  Spiering  v.  Andree, 
45  Wis.  330  (30  Am.  Rep.  744). 
1  Lewis  v.  Few,  5  Johns.  1,  35. 

§   22 


60   GOVERNMENT  REGULATION  OF  PERSONAL  SECURITY. 

prima  facie  presumption  of  law  is,  that  the  publication 
was  malicious,  and  the  circumstance  of  the  defendant  being 
associated  with  others  does  not  per  se  rebut  this  presump- 
tion." This  position  of  the  New  York  court  has  not  only 
been  sustained  by  later  cases  in  the  same  State,  but  it  has 
been  followed  generally  by  the  other  American  courts, 
and  it  may  be  considered  as  the  settled  doctrine  in  this 
country.1 

§  23.  Publications  through  the  press. — It  has  been 
often  urged  in  favor  of  the  press,  that  a  general  and  almost 
unrestricted  privilege  should  be  granted  the  proprietors  of 
newspapers  for  all  statements  that  might  be  received  and 
printed  in  their  paper  in  good  faith,  which  subsequently 
prove  to  be  false  and  injurious  to  some  individual,  pro- 
vided it  pertain  to  a  matter  in  which  the  public  may  justly 
be  supposed  to  be  interested.  This  view  has  of  late  met 
with  a  strong  support  in  Judge  Cooley.  In  criticising  an 
opinion  of  the  New  York  court  to  the  contrary,2  he  says : 
'*  If  this  strong  condemnatory  language  were  confined  to 
the  cases  in  which  private  character  is  dragged  before  the 
public  for  detraction  and  abuse  to  pander  to  a  depraved 
appetite  for  scandal,  its  propriety  and  justice  and  the  force 
of  its  reasons  would  be  at  once  conceded.  But  a  very 
large  proportion  of  what  the  newspapers  spread  before  the 
public  relates  to  matters  of  public  concern,  in  which, 
nevertheless,  individuals  figure,  and  must,  therefore,  be 

1  See  King  v.  Root,  4  Wend.  113  (21  Am.  Dec.  102)  ;  Powers  v,  Dubois, 
17  Wend.  63;  Hunt  v.  Bennett,  19  N.  Y.  173;  Hamilton  v.  Eno,  81  N.  Y. 
116;  Thomas  v.  Crosswell,  7  Johns.  264  (6  Am.  Dec.  269);  Tillson  v. 
Bobbins,  68  Me.  295  (28  Am.  Rep.  50) ;  Hook  v.  Hackney,  16  Serg.  &  R. 
385;  Sweeney  v.  Baker,  13  W.  Va.  158  (31  Am.  Rep.  757);  Foster  v. 
Scripps,  39  Mich.  376  (33  Am.  Rep.  403)  ;  Wilson  y.  Noonan,  35  Wis.  321 ; 
Gottbehuet  ».  Hubachek,  36  Wis.  515;  Qove  v.  Bleehen,  21  Min.  80  (18 
Am.  Rep.  380),  Rearick  v.  Wilcox,  81  111.  77;  Russell  v.  Anthony,  21  Kan. 
450  (30  Am.  Rep.  436).  See  Barr  v.  Moore,  87  Pa.  St.  385  (30  Am.  Rep. 
367). 

8  Hotchkiss  v.  Oliphant,  2  Hill,  510-513,  per  Nelson,  Ch.  J. 
§   23 


PUBLICATIONS   THROUGH   THE   PRESS.  61 

mentioned  in  any  account  or  discussion.  To  a  great  extent 
also,  the  information  comes  from  abroad ;  the  publisher  can 
have  no  knowledge  concerning  it,  and  no  inquiries  which 
he  could  make  would  be  likely  to  give  him  more  definite  in- 
formation, unless  he  delays  the  publication,  until  it  ceases 
to  be  of  value  to  his  readers.  Whatever  view  the  law  may 
take,  the  public  sentiment  does  not  brand  the  publisher 
of  news  as  libeler,  conspirator  or  villain,  because  the 
telegraphic  dispatches  transmitted  to  him  from  all  parts  of 
the  world,  without  any  knowledge  on  his  part  concerning 
the  facts,  are  published  in  his  paper,  in  reliance  upon  the 
prudence,  care  and  honesty  of  those  who  have  charge  of  the 
lines  of  communication,  and  whose  interest  it  is  to  be  vigi- 
lant and  truthful.  The  public  demand  and  expect  accounts 
of  every  important  meeting,  of  every  important  trial,  and 
of  all  the  events  which  have  a  bearing  upon  trade  and 
business,  or  upon  political  affairs.  It  is  impossible  that 
these  shall  be  given  in  all  cases  without  matters  being 
mentioned  derogatory  to  individuals;  and  if  the  question 
were  a  new  one  in  the  law,  it  might  be  worthy  of  inquiry 
whether  some  lines  of  distinction  could  not  be  drawn  which 
would  protect  the  publisher  when  giving  in  good  faith  such 
items  of  news  as  would  be  proper,  if  true,  to  spread  before 
the  public,  and  which  he  gives  in  the  regular  course  of  his 
employment,  in  pursuance  of  a  public  demand,  and  without 
any  negligence,  as  they  come  to  him  from  the  usual  and 
egitimate  sources,  which  he  has  reason  to  rely  upon;  at 
the  same  time  leaving  him  liable  when  he  makes  his  columns 
the  vehicle  of  private  gossip,  detraction  and  malice."  J  We 
believe  that  the  law  should  «*  protect  the  publisher  when 
giving  in  good  faith  such  items  of  news  as  would  be  proper, 
if  true,  to  spread  before  the  public."  But  the  difficulty  is 
experienced  in  determining  what  is  proper  to  be  published 
in  an  ordinary  newspaper.  It  seems  to  us  that  whenever 

1  Cooley  Const.  Lim.  "454. 

§   23 


62      GOVERNMENT    REGULATION    OF   PERSONAL    SECURITY. 

an  event  occurs  in  which  the  public  generally  is  justified  in 
demanding  information,  the  published  accounts  will  be  cov- 
ered by  the  ordinary  privilege  which  is  granted  to  the  in- 
jurious and  false  statements  of  private  individuals,  when 
they  are  made  to  those  who  have  a  legitimate  interest  in 
the  subject-matter.1  But  there  is  no  reason  why  any 
special  protection  should  be  thrown  around  the  publisher  of 
news.  Any  such  special  protection  which  cannot  in  reason 
be  extended  to  the  "  village  gossiper,"  would  in  the  main 
only  serve  to  protect  newspaper  publishers  in  the  publica- 
tion of  what  is  strictly  private  scandal.  Except  in  one 
large  class  of  cases,  in  which  we  think  both  the  press  and 
the  individual  are  entitled  to  the  protection  asked  for,  viz. : 
in  criticisms  upon  public  officials  and  candidates  for  office, 
the  general  demand  of  Judge  Cooley  may  be  granted,  in- 
deed is  now  granted  by  the  law  which  denies  **  that  con- 
ductors of  the  public  press  are  entitled  to  peculiar  indul- 
gences and  have  special  rights  and  privileges."  2  But  the 
demands  of  the  press  extend  beyond  the  limits  set  down  by 
Judge  Cooley.  The  privilege  they  ask  for  is  intended  to 
furnish  protection  for  all  those  thrilling  accounts  of  crime 
and  infamous  scandal,  the  publication  of  which  appears  to 
be  required  by  a  depraved  public  taste,  but  which  the 

1  See  Commonwealth  v.  Nichols,  10  Met.  259;  Mason  v.  Mason,  4  N.  H. 
110;  Carpenters.  Bailey, 53  N.H.  590;  Lewis  v.  Few,  5  Johns.  1 ;  Andres 
v.  Wells,  7  Johns.  260   (5  Am.  Dec.  257) ;  Dale  v.  Lyon,  10  Johns.  447  (6 
Am.  Dec.  346) ;  Marten  v.  Van  Shaik,  4  Paige,  479 ;  Sandf ord  v.  Bennett, 
24  N.  Y.  20;  Hampton  v.  Wilson,  4  Dev.  468;  Parker  v.  McQueen,  8  B. 
Mon.  16;  Fowler  v.  Chichester,  26  Ohio  St.  9;  Gates  v.  Kellogg,  9  Ind. 
506;  Farr  v.  Easco,  9  Mich.  353;  Wheeler  v.  Shields,  3  111.  348;  Cummer- 
ford  v.  McAvoy,  15  111.  311 ;  Hawkins  v.  Lumsden,  10  Wis.  359 ;  Beardsley 
v.  Bridgman,  17  Iowa,  290. 

2  "  The  law  recognizes  no  such  peculiar  rights,  privileges  or  claims  to 
indulgence.    They  have  no  rights  but  such  as  are  common  to  all.    They 
have  just  the  same  rights  that  the  rest  of  the  community  have,  and  no 
more.    They  have  the  right  to  publish  the  truth,  but  no  right  to  publish 
falsehood  to  the  injury  of  others  with  impunity."    King  v.  Root,  4  Wend. 
113  (21  Am.  Dec.  102). 

§    23 


PUBLICATIONS   THROUGH   THE    PRESS.  63 

thoughtful  citizen  would  rather  suppress  than  give  special 
protection  to  the  publisher.  The  only  two  cases  in  which 
a  change  in  the  existing  law  of  privilege  would  perhaps  be 
just  and  advisable,  are,  first,  the  public  criticism  of  public 
officials  and  political  candidates,  and,  secondly,  the  reports 
of  failures  or  financial  embarrassments  of  commercial  per- 
sonages. In  the  second  case,  the  privilege  is  granted  to 
individuals,  and  even  to  those  well-known  mercantile  agen- 
cies, when  they  make  private  reports  to  their  subscribers  of 
the  financial  standing  of  some  merchant;  l  but  the  privilege 
does  not  appear  to  extend  to  the  publication  of  such  items 
in  the  newspapers.3  Recently,  laws  have  been  passed  in 

1  Lewis  v.  Chapman,  16  N.  Y.  369;  Ormsby  v.  Douglass,  37  N.  Y.  477. 

2  Thus,  the  reports  of   a  mercantile  agency,  published  and  distrib- 
uted   among    its   subscribers,  have    been    held    not   to  be  privileged. 
Giacona    v.    Bradstreet,  48    La.  Ann.  1191;  Taylor  v.  Church,  8  N.  Y. 
462;  Sunderlin  v.  Bradstreet,  46  N.  Y.  188  (7  Am.  Rep.  322).     It  may 
be  assumed  that  if  any  one,  having  an  interest  in  knowing  the  credit 
and  standing  of  the  plaintiffs,  or  whom  the  defendants  supposed  and 
believed  to  have  had  such  interest,  had  made   the   inquiry  of  the  de- 
fendants, and  the   statement  in   the   alleged    libel  had   been   made  in 
answer  to  the  inquiry  in  good  faith;  and  upon  information  upon  which 
the  defendants  relied,  it  would   have  been  privileged.    This  was  the 
case  of  Ormsby  v.  Douglass,  37  N.  Y.  477.     The   business  of  the  de- 
fendant in  that  case  was  of  a  similar  character  to  that  of  the  present 
defendants;  and  the  statement  complained  of  was  made  orally,  to  one 
interested  in  the  information,  upon  personal  application  at  the  office 
of  the    defendant  who   refused  to   make  a  written   statement.    There 
was  no  other  publication,  and  it  was  held   that  the  occasion  justified 
the  defendant  in  giving  such  information  as  he  possessed  to  the  appli- 
cant. 

"  In  the  case  at  bar,  it  is  not  pretended  that  but  few,  if  any,  of  the  per- 
sons to  whom  the  10,000  copies  of  the  libelous  publication  were  trans- 
mitted, had  any  interest  in  the  character  or  pecuniary  responsibility  of 
the  plaintiffs;  and  to  those  who  had  no  such  interest  there  was  no  just 
occasion  or  propriety  in  communicating  the  information.  The  defend- 
ants, in  making  the  communication,  assumed  the  legal  responsibility 
which  rests  upon  all  who,  without  cause,  publish  defamatory  matter  of 
others,  that  is,  of  proving  the  truth  of  the  publication,  or  responding  in 
damages  to  the  injured  party.  The  communication  of  the  libel,  to  those 
not  interested  in  the  information,  was  officious  and  unauthorized,  and, 
therefore,  not  protected,  although  made  in  the  belief  of  its  truth,  if  it 

§  23 


64      GOVERNMENT   REGULATION   OF   PERSONAL   SECURITY. 

several  States,  which  prohibit  the  harassment  of  debtors  by 
the  publication  of  their  names  as  bad  debtors;  and,  in  one 
case,  the  constitutionality  of  the  law  was  contested,  but 
unsuccessfully.1  United  States  statutes  also  prohibit  the 
writing  of  "  dunning"  communications  to  debtors  on  postal 
cards. 

The  principal  inquiry  that  concerns  us  in  the  present  con- 
nection is,  to  what  extent  privileged  communications  remain 
so,  when  they  are  published  through  the  public  press.  The 
privilege  does  not  extend  beyond  the  necessity  which  justi- 
fies its  existence.  Thus,  for  example,  the  law  provides  for 
the  legal  counsellor  and  advocate  a  complete  immunity  from 
responsibility  for  anything  he  says  in  the  conduct  of  a 
cause.  The  privilege  rests  upon  the  necessity  for  absolute 
freedom  of  speech,  in  order  to  insure  the  attainment  of  jus- 
tice between  the  parties.  A  publication  of  his  speech  will 
not  aid  in  the  furtherance  of  justice,  and  hence  it  is  not 
privileged.  But  the  law  favors  the  greatest  amount  of 
publicity  in  legal  proceedings,  it  being  one  of  the  political 
tenets  prevailing  in  this  country,  that  such  publicity  is  a 
strong  guaranty  of  personal  liberty,  and  furthers  materially 
the  ends  of  justice.  Hence  we  find  that  fair,  impartial 
accounts  of  legal  proceedings,  which  are  not  ex  parte  in 
character,  are  protected  and  are  recognized  as  justifiable 
publications.2  The  publication  is  privileged  only  when  it 
is  made  with  good  motives  and  for  justifiable  ends.3  Ob- 
servations or  comments  upon  the  proceedings  do  not  come 

were  in  point  of  fact  false."  Judge  Allen  in  Sunderlin  v.  Bradstreet, 
supra. 

1  State  v.  McCabe,  136  Mo.  450. 

8  Lewis  0.  Levy,  E.  B.  &  E.  537;  Hoare  v.  Silver-lock,  9  C.  B.  20; 
Torrey  v.  Field,  10  Vt.  353;  Stanley  o.  Webb,  4  Sandf.  21;  Fawcett  v. 
Charles,  13  Wend.  473;  McBee  v.  Fulton,  47  Md.  403  (28  Am.  Rep.  465); 
Cincinnati  Gazette  Co.  v.  Timber-lake,  10  Ohio  St.  548.  The  privilege  is 
also  extended  to  the  publication  of  investigations  ordered  by  Congress. 
Ferry  v.  Fellows,  21  La.  Ann.  375. 

8  Saunders  u.  Baxter,  6  Hei.sk.  369. 
§  23 


PUBLICATIONS    THROUGH    THE    PRESS.  65 

within  the  privilege."1  Nor,  it  seems,  do  the  defamatory 
speeches  come  within  the  privilege  thus  accorded  to  the 
publication  of  legal  proceedings.2  But  ex  parte  proceedings, 
and  all  preliminary  examinations,  though  judicial  in  char- 
acter, do  not  come  within  the  privilege,  and  are  not  pro- 
tected when  published  in  the  newspaper.  In  one  case,  the 
court  say  :  "It  is  our  boast  that  we  are  governed  by  that 
just  and  salutary  rule  upon  which  security  of  life  and  char- 
acter often  depends,  that  every  man  is  presumed  innocent 
of  crimes  charged  upon  him,  until  he  is  proved  guilty. 
But  the  circulation  of  charges  founded  on  ex  parte  testi- 
mony, of  statements  made,  often  under  excitement,  by  per- 
sons smarting  under  real  or  fancied  wrongs,  may  prejudice 
the  public  mind,  and  cause  the  judgment  of  conviction  to 
be  passed  long  before  the  day  of  trial  has  arrived.  When 
that  day  of  trial  comes,  the  rule  has  been  reversed,  and  the 
presumption  of  guilt  has  been  substituted  for  the  presump- 
tion of  innocence.  The  chances  of  a  fair  and  impartial 
trial  are  diminished.  Suppose  the  charge  to  be  utterly 
groundless.  If  every  preliminary  ex  parte,  complaint,  which 
may  be  made  before  a  police  magistrate,  may  with  entire 
impunity  be  published  and  scattered  broadcast  over  the 
land,  then  the  character  of  the  innocent,  who  may  be  the 
victim  of  a  conspiracy,  or  of  charges  proved  afterwards  to 
have  arisen  entirely  from  misapprehension,  may  be  cloven 
down  without  any  malice  on  the  part  of  the  publisher.  The 
refutation  of  slander,  in  such  cases,  generally  follows  its 
propagation  at  distant  intervals,  and  bring  often  but  an 
imperfect  balm  to  wounds  which  have  become  festered,  and 
perhaps  incurable.  It  is  not  to  be  denied  that  occasionally 

1  Stiles  v.  Nokes,  7  East,  493;  Clark  ».  Binney,  2  Pick.  112;  Common- 
wealth v.  Blanding,  3  Pick.  304  (15  Am.  Dec.  214);  Pittock  ».  O'Neill,  63 
Pa.  St.  253  (3  Am.  Rep.  544);  Scripps  v.  Keilly,  38  Mich.  10;   Storey  v. 
Wallace,  60  111.  51. 

2  Saunders  v.  Mills,  6  Bing.  213 ;  Flint  v.  Pike,  4  B.  &  C.  473.     See 
Stanley  v.  Webb,  4  Sandf.  21. 

5  §  23 


66      GOVERNMENT    REGULATION    OF   PERSONAL    SECURITY. 

the  publication  of  such  proceedings  is  productive  of  good, 
and  promotes  the  ends  of  justice.  But  in  such  cases,  the 
publisher  must  find  his  justification,  not  in  privilege,  but  in 
the  truth  of  the  charges."  1 

But  the  English  courts  have  lately  shown  an  inclination 
to  depart  from  this  doctrine,  particularly  in  relation  to  the 
publication  of  police  reports.  In  a  late  case,2  Lord  Camp- 
bell indorses  and  acts  upon  the  following  quotation  from  an 
opinion  of  Lord  Denman,  expressed  before  a  committee  of 
the  House  of  Lords  in  1843  :  «*  I  have  no  doubt  that  (police 
reports)  are  extremely  useful  for  the  detection  of  guilt  by 
making  facts  notorious,  and  for  bringing  those  facts  more 
correctly  to  the  knowledge  of  all  parties  in  unraveling  the 
truth.  The  public,  I  think,  are  perfectly  aware  that  those 
proceedings  are  exparte,  and  they  become  more  and  more 
aware  of  it  in  proportion  to  their  growing  intelligence ;  they 
know  that  such  proceedings  are  only  in  the  course  of  trial, 
and  they  do  not  form  their  opinions  until  the  trial  is  had. 
Perfect  publicity  in  judicial  proceedings  is  of  the  highest  im- 
portance in  other  points  of  view,  but  in  its  effect  upon 
character,  I  think  it  desirable.  The  statement  made  in  open 
court  will  probably  find  its  way  to  the  ears  of  all  in  whose 
good  opinion  the  party  assailed  feels  an  interest,  probably 
in  an  exaggerated  form,  and  the  imputation  may  often  rest 
upon  the  wrong  person  ;  both  these  evils  are  prevented  by 
correct  reports."  The  publication  of  police  reports,  or  of 
any  other  preliminary  proceedings  of  a  judicial  nature,  will 
bring  the  news  to  the  ears  of  countless  numbers  of  strangers, 
who.,  not  knowing  the  party  accused,  will  not  likely  be 
prejudiced  in  his  favor,  and  certainly  would  not  have  heard 
or  have  taken  any  interest  in  the  rumor  of  the  man's  guilt, 

1  Stanley  v.  Webb,  4  Sandf.  21.    See  Usher  v.  Severance,  21  Me.  9  (87 
Am.  Dec.  33);  Matthews  v.  Beach,  5  Sandf.  259;  Cincinnati  Gazette  Co. 
v.  Timberlake,   10  Ohio  St.  648;  Duncan  v.  Thwaites,  3  B.  &  C.  556; 
Charlton  ».  Walton,  6  C.  &  P.  385. 

2  Lewis  v.  Levy,  E.  B.  &  E.  537. 

§    23 


SECURITY  TO  REPUTATION — MALICIOUS  PROSECUTION.       67 

but  for  the  publication.  The  readers  of  these  reports,  who 
are  inclined  to  receive  them  in  the  judicial  frame  of  mind, 
suggested  by  Lord  Denman,  are  not  numerous,  and  very 
few  will  dismiss  from  their  minds  all  suspicions  against  the 
innocence  of  the  accused  when  there  has  been  a  failure  to 
convict  him  of  the  charge.  Even  when  there  has  been  a 
trial  of  the  defendant,  and  the  jury  has  brought  in  a  verdict 
of  acquittal,  the  publication  of  the  proceedings  is  calculated 
to  do  harm  to  the  reputation  of  the  defendant.  But  the 
public  welfare  demands  the  freest  publicity  in  ordinary  legal 
proceedings,  and  the  interest  of  the  individual  must  here 
give  way.  On  the  other  hand,  there  is  no  great  need  for 
the  publication  of  the  preliminary  examinations.  In  only 
a  few  cases  can  the  publication  prove  of  any  benefit  to  the 
public.  The  public  demand  being  small,  the  sacrifice  of 
private  interest  is  not  justified. 

Not  only  is  the  publication  of  the  proceedings  of  a  court 
of  law  privileged;  but  the  privilege  extends  to  the  publica- 
tion in  professional  and  religious  journals  of  proceedings 
had  before  some  judicial  body  or  council,  connected  with 
the  professional  or  religious  organization,  which  the  pub- 
lishing paper  represents.1  And  so  likewise  would  be 
privileged  the  publication  of  legislative  proceedings,  and 
the  proceedings  of  congressional  and  legislative  investigat- 
ing committees.3 


SECTION  24.  Security  to  reputation  —  Malicious  prosecution. 
25.  Advice  of  counsel^  how  far  a  defense. 

§  24.  Security  to  reputation  —  Malicious  prosecution. — 

Although  a  prosecution  on  the  charge  of  some  crime  may 
result  in  a  verdict  of  acquittal,  even  where  the  trial  would 
furnish  to  a  judicial  mind  a  complete  vindication,  by  remov- 

1  Burrows  v.  Bell,  7  Gray,  301;  Shurtleff  v.  Stevens,  51  Vt.    501  (31 
Am.  Rev.  698). 

J  Terry  v.  Fellows,  21  La.  Ann.  375. 

§    24 


68      GOVERNMENT   REGULATION   OF   PERSONAL    SECURITY. 

ins  all  doubts  of  the  innocence  of  the  accused,  it  will 
nevertheless  leave  its  mark  upon  the  reputation.  Even  a 
groundless  acccusation  will  soil  one's  reputation.  But  it  is 
to  the  interest  of  the  public,  as  well  as  it  is  the  right  of  the 
individual,  that  resort  should  be  made  to  the  courts  for 
redress  of  what  one  conceives  to  be  a  wrong.  While  a 
litigious  spirit  is  to  be  deprecated,  since  in  the  institution  of 
legal  order  the  right  to  self-defense  is  taken  away,  except 
as  an  immediate  preventive  of  attacks  upon  person  and 
property,  it  is  not  only  expedient  but  just,  that  when  a 
man  believing  that  he  has  a  just  claim  against  the  defend- 
ant, or  that  this  person  has  committed  some  act  which 
subjects  him  to  a  criminal  prosecution,  sets  the  machinery 
of  the  law  in  motion,  he  should  not  be  held  responsible  for 
any  damage  that  might  be  done  to  the  person  prosecuted,  in 
the  event  of  his  acquittal.  The  good  faith  of  the  prose- 
cutor should  shield  him  from  liability.  Any  other  rule  would 
operate  to  discourage  to  a  dangerous  degree  the  prosecution 
of  law-breakers,  and  hence  it  has  been  recognized  as  a  wise 
limitation  upon  the  right  of  security  to  reputation.  But  the 
interests  of  the  public  do  not  require  an  absolute  license 
in  the  institution  of  groundless  prosecutions.  The  protec- 
tion of  privilege  is  thrown  around  only  those  who  in  good 
faith  commence  the  prosecution  for  the  purpose  of  securing 
a  vindication  of  the  law,  which  they  believe  to  have  been 
violated.  Hence  we  find  that  the  privilege  is  limited,  and, 
as  it  is  succinctly  stated  by  the  authorities,  in  order  that 
an  action  for  malicious  prosecution,  in  which  the  prose- 
cutor may  be  made  to  suffer  in  damages,  may  be  sustained, 
three  things  must  concur :  there  must  be  an  acquittal  of 
the  alleged  criminal,  the  suit  must  have  been  instituted 
without  probable  cause,  and  prompted  by  malice. 

A  final  acquittal  is  necessary,  because  a  conviction  would 

be  conclusive  of  his  guilt.     And  even  where  he  is  convicted 

in  the    court    below,  and    a  new  trial  is  ordered  by  the 

superior  court  for  error,  the  conviction  is  held  to  be  con- 

§   24 


SECURITY  TO  REPUTATION  —  MALICIOUS  PROSECUTION.       69 

elusive  proof  of  the  existence  of  probable  cause.1  But 
an  acquittal,  on  the  other  hand,  does  not  prove  the  want 
of  probable  cause,  does  not  even  raise  the  prima  facie  pre- 
sumption of  a  want  of  probable  cause.  Probable  cause,  as 
defined  by  the  Supreme  Court  of  the  United  States,  is 
"  the  existence  of  such  facts  and  circumstances  as  would 
excite  belief  in  a  reasonable  mind,  acting  on  the  facts 
within  the  knowledge  of  the  prosecutor,  that  the  person 
charged  was  guilty  of  the  crime,  for  which  he  was  pros- 
ecuted." 2 

The  want  of  probable  cause  cannot  be  inferred;  it  must 
be  proven  affirmatively  and  independently  of  the  presence 
of  actual  malice.  The  plainest  proof  of  actual  malice  will 
not  support  an  action  for  malicious  prosecution,  if  there  be 
probable  cause.  With  probable  cause,  the  right  to  institute 
the  prosecution  is  absolute,  and  the  element  of  malice  does 
not  affect  it.3  But  when  it  has  been  shown  that  the  defend- 
ant in  the  prosecution  has  been  acquitted  and  that  the  suit 
had  been  instituted  without  probable  cause,  the  malice  need 
not  be  directly  and  affirmatively  proved.  It  may  be  inferred 
from  the  want  of  probable  cause.  The  want  of  probable 

1  Witham  v.  Gowen,  14  Me.   362;  Payson  v.  Caswell,  22  Me.  212; 
Whitney  v.  Peckham,  15  Mass.  242;  Bacon  v.  Towne,  4  Gush.  217;  Kirk- 
patrick  v.  Kirkpatrick,  39  Pa.  St.  288;  Griffs  v.  Sellars,  4  Dev.  &  Bat.  176. 

2  Wheeler  v.  Nesbit,  24  How.  (U.  S.)  545.     See  Gee  v.  Patterson,  63 
Me.   49;  Barton  v.  Mason,  31  Vt.  189;  Mowry  v.  Whipple,  8  R.  I.  360; 
Stone  v.  Stevens,  12  Conn.  219;  Carl  v.  Ayres,  53  N.  Y.  13;  Farnam  v. 
Feeley,  55  N.  Y.  551;  Fagnan  v.  Knox,  65  N.  Y.  525;  Winebiddle  v.  Por- 
terfield,  9  Pa.  St.  137;  Boyd  v.  Cross,  35  Md.  194;  Spengle  v.  Davy,  15 
Gratt.  381;  Braveboy  v.  Cockfleld,  2  McMul.  270;  Raulston  v.  Jackson,  1 
Sneed,    128;  Faris  ».  Starke,  3  B.  Mon.  4;  Collins  v.  Hayte,  50  111.  353; 
Gallaway  v.  Burr,  32  Mich.  332;  Lawrence  v.  Lanning,  4  Ind.  194;  Shaul 
v.  Brown,  28  Iowa,  57  (4  Am.  Rep.  151);  Bauer  v.  Clay,  8  Kan.  580. 

3  Williams  v.  Taylor,  6  Bing.  183;  Cloonv.  Gerry,  13  Gray,  201;  Heyne 
v.  Blair,  62  N.  Y.  19;  Travis  v.  Smith,  1  Pa.  St.  234;  Bell  v.  Pearcy,  5 
Ire«.  83;  Hall  v.  Hawkins,  5  Humph.  357;  Israel  v.  Brooks,  23111.  575; 
King  i?.  Ward,  77  111.  603;  Mitchinson  v.  Cross,  58  111.  366;  Callahan  v. 
Caffarati,   39  Mo.  136;  Sappington  v.  Watson,  50  Mo.   83;  Malone  v. 
Murphy,  2  Kan.  250. 

§   24 


70      GOVERNMENT   REGULATION    OF   PERSONAL    SECURITY. 

cause  raises  the  prima  facie  presumption  of  malice,  and 
throws  upon  the  prosecutor  the  burden  of  proving  that  he 
was  not  actuated  by  malice  in  the  commencement  of  the 
prosecution.1  But  this  presumption  may  be  rebutted  by  the 
presentation  of  facts,  which  indicate  that  the  prosecutor  was 
actuated  solely  by  the  laudable  motives  of  bringing  to 
justice  one  whom  he  considers  a  criminal.  The  want  of 
probable  cause  is  not  inconsistent  with  perfect  good  faith. 
The  prosecutor  may  have  been  honestly  mistaken  in  the 
strength  of  his  case.  But  when  a  man  is  about  to  institute 
a  proceeding  which  will  do  irreparable  damage  to  a  neigh- 
bor's reputation,  however  it  may  terminate,  it  is  but 
natural  that  he  should  be  required  to  exercise  all  reasonable 
care  in  ascertaining  the  legal  guilt  of  the  accused.  As  it 
was  expressed  in  one  case : 2  ««  Every  man  of  common  in- 
formation is  presumed  to  know  that  it  is  not  safe  in  matters 
of  importance  to  trust  to  the  legal  opinion  of  any  but 
recognized  lawyers ;  and  no  matter  is  of  more  legal  impor- 
tance than  private  reputation  and  liberty.  When  a  person 
resorts  to  the  best  means  in  his  power  for  information,  it 
will  be  such  a  proof  of  honesty  as  will  disprove  malice  and 
operate  as  a  defense  proportionate  to  his  diligence."  In 
order,  therefore,  that  the  prosecutor  may,  where  a  want  of 
probable  cause  has  been  established  against  him,  claim  to 
have  acted  in  good  faith  and  thus  screen  himself  from  lia- 
bility, he  must  show  that  he  consulted  competent  legal 
counsel,  and  that  the  prosecution  was  instituted  in  reliance 
upon  the  opinion  of  counsel  that  he  had  a  good  cause  of 
action. 

1  Merriam  v.  Mitchell,  13  Me.  439;  Mowry  v.  Whipple,  8  R.  I.  360; 
Closson  v.  Staples,  42  Vt.  209;  Panghurn  v.  Bull,  1  Wend.  345;  McKewn 
v.  Hunter,  30  N.  Y.  624;  Dietz  v.  Langfltt,  63  Pa.  St.  234;  Cooper  v. 
Utterbach,  37  Md.  282;  Flickinger  ».  Wagner,  46  Md.  581;  Ewing  v.  San- 
ford,  19  Ala.  605;  Blass  o.  Gregor,  15  La.  Ann.  421;  White  v.  Tucker,  16 
Ohio  St.  468;  Ammerman  v.  Crosby,  26  Ind.  451 ;  Harpham  v.  Whitney,  77 
111.  32;  Holliday  v.  Sterling,  62  Mo.  321 ;  Harkrader  v.  Moore,  44  Cal.  14*. 

2  Campbell,  J.,  in  Stanton  ».  Hart,  27  Mich.  539. 

§   24 


ADVICE   OF   COUNSEL,  HOW   FAR   A   DEFENSE.  71 

§  25.  Advice  of  counsel,  how  far  a  defense. —  It    is 

remarkable  with  what  uncertainty  the  books  speak  of  the 
manner  in  which  the  advice  of  counsel  constitutes  a  defense 
to  the  action  for  malicious  prosecution.  Some  of  the  cases 
hold  that  it  is  proof  of  probable  cause  ; l  some  maintain  that  it 
disproves  malice,  in  most  cases  imposing  no  limitation  upon 
its  scope,2  while  others,  and  it  is  believed  the  majority  of 
cases,  refer  to  it  as  establishing  both  the  absence  of  malice 
and  the  presence  of  a  probable  cause.3  If  the  position  of 
these  courts  is  correct,  which  hold  that  the  advice  of  coun- 
sel establishes  the  existence  of  probable  cause,  then  the 
advice  of  counsel  will  constitute  an  absolute  bar  to  all  ac- 
tions for  malicious  prosecution,  whenever  there  has  been  a 

1  See  Olmstead  v.  Partridge,  16  Gray,  383;    Besson  v.  Southard,  10 
N.  Y.  237;  Laughlin  v.  Clawson,  27  Pa.  St.  330;  Fisher  v.  Forrester, 
33  Pa.  St.  501;  Ross  v.  Innis,  26  111.  259;  Potter  o.  Sealey,  8  Cal.  217; 
Levy  v.  Brannan,  39  Cal.  485.    Mr.  Cooley,  in  his  work  on  Torts,  p. 
183,  says:     UA  prudent  man  is,  therefore,  expected  to  take  such  ad- 
vice (of  counsel),  and  when  he  does  so,  and  places  all  the  facts  before 
his  counsel,  and  acts  upon  his  opinion,  proof  of  the  fact  makes  out  a 
case  of  probable  cause,  provided  the  disclosure  appears  to  have  been  full 
and  fair,  and  not  to  have  withheld  any  of  the  material  facts." 

2  Snow  v.   Allen,  1    Stark.  409;  Sommer  v.  Wilt,  4  Serg.  &  R.  20; 
Davenport  v.   Lynch,  6  Jones  L.   545;  Stanton  v.  Hart,  27  Mich.  539; 
Murphy  v.   Larson,    77  111.  172;  Williams  v.   Van  Meter,  8  Mo.  339; 
Center  v.  Spring,  2  Clarke,  393;  Rover  v.  Webster,  3  Clarke,  502. 

8  See  Soule  v.  Winslow,  66  Me.  447;  Bartlett  u.  Brown,  6  R.  I.  37; 
Ames  v.  Rathbun,  55  Barb.  194;  Walter  v.  Sample,  25  Pa.  St.  275; 
Turner  v.  Walker,  3  G.  &  J.  380;  Gould  v.  Gardner,  8  La.  Ann.  11; 
Phillips  v.  Bonham,  16  La.  Ann.  387;  Lemay  v.  Williams,  32  Ark.  166; 
Wood  r.Weir,  5  B.  Mon.  544;  Wicker  v.  Hotchkiss,  62111.  107;  Daviev. 
Wisher,  72  111.  262;  Wilkinson  v.  Arnold,  13  Ind.  45;  Bliss  v.  Wyman,  7 
Cal.  257.  In  the  case  of  Blunt  v.  Little,  3  Mason,  102,  Mr.  Justice  Story 
said:  "It  is  certainly  going  a  great  way  to  admit  the  evidence  of  any 
counsel  that  he  advised  a  suit  upon  a  deliberate  examination  of  the  facts, 
for  the  purpose  of  repelling  the  imputation  of  malice  and  establishing  prob- 
able cause.  My  opinion,  however,  is  that  such  evidence  is  admissible." 
So,  also,  in  Walter  v.  Sample,  25  Pa.  St.  275,  we  find  the  law  stated  thus : 
"  Professors  of  the  law  are  the  proper  advisers  of  men  in  doubtful  cir- 
cumstances, and  their  advice,  when  fairly  obtained,  exempts  the  party 
who  acts  upon  it  from  the  imputation  of  proceeding  maliciously  and 
without  probable  cause." 

§   25 


72      GOVERNMENT   REGULATION   OF   PERSONAL   SECURITY. 

full  and  fair  disclosure  of  all  the  facts  within  the  knowledge 
of  the  prosecutor;  and  the  proof  of  actual  malice  as  the 
cause  of  the  prosecution  will  not  render  him  liable,  not  even 
where  the  procurement  of  professional  opinion  was  to  fur- 
nish a  cloak  for  his  malice,  or  as  a  matter  of  precaution,  to 
learn  whether  it  was  safe  to  commence  proceedings.  But 
probable  cause  does  not  rest  upon  the  sincerity  of  the 
prosecutor's  belief,  nor  upon  its  reasonableness,  as  shown 
by  facts  which  are  calculated  to  influence  his  judgment 
peculiarly,  and  not  the  judgment  of  others.  It  must  be 
established  by  facts  which  are  likely  to  induce  any  reason- 
able man  to  believe  that  the  accused  is  guilty.  If  probable 
cause  depends  upon  the  honest  reasonable  belief  of  the 
prosecutor  in  the  guilt  of  the  accused,  it  is  certainly  based 
upon  reasonable  grounds,  if  his  legal  adviser  tells  him  that 
he  has  a  good  cause  of  action.  But  his  belief  does  not 
enter  into  the  determination  of  the  question  of  probable 
cause.  Although  his  honest  belief  in  the  guilt  of  the  ac- 
cused is  necessary  to  shield  him  from  a  judgment  for  ma- 
licious prosecution,  it  is  not  because  such  belief  is  necessary 
to  establish  probable  cause,  but  because  its  absence  proves 
that  the  prosecution  was  instituted  for  the  gratification 
of  his  malice.  The  opinion  of  counsel  can  not  supplant 
the  judgment  of  the  court  as  to  what  is  probable  cause, 
and  such  would  be  the  effect  of  the  rule,  that  the  advice  of 
counsel  establishes  probable  cause.  As  Mr.  Justice  Story 
said:  "What  constitutes  a  probable  cause  of  action  is, 
when  the  facts  are  given,  matter  of  law  upon  which  the 
court  is  to  decide ;  and  it  can  not  be  proper  to  introduce 
certificates  of  counsel  to  establish  what  the  law  is."  1 

The  better  opinion,  therefore,  is  that  the  advice  of  coun- 
sel only  furnishes  evidence  of  his  good  motives,  in  rebuttal 
to  the  inference  of  malice  from  want  of  probable  cause. 
It  does  not  constitute  a  conclusive  presumption  of  good 

1  Blunt  v.  Little,  3  Mason,  102. 
§    25 


ADVICE  OF  COUNSEL,  HOW  FAR  A  DEFENSE.      73 

faith  on  the  part  of  the  prosecutor.  If,  therefore,  there 
are  facts,  which  establish  the  existence  of  malice,  and  show 
that  the  procurement  of  professional  opinion  was  to  cloak 
his  malice,  or  as  a  matter  of  precaution  to  learn  whether 
it  was  safe  to  commence  proceedings,  the  defense  will  not 
prevail,  and  the  prosecutor  will,  notwithstanding,  be  held 
liable.1 

1  Burnap  v.  Albert,  Taney,  344;  Ames  v.  Rathbun,  55  Barb.  194;  Kim- 
oall  v.  Bates,  50  Me.  308;  Brown  v.  Randall,  36  Conn.  56;  Prough  v.  En- 
triken,  11  Pa.  St.  81;  Fisher  v.  Forrester,  33  Pa.  St.  501;  Schmidt  v. 
Weidman,  63  Pa.  St.  173;  Davenport  v.  Lynch,  6  Jones  L.  545;  Glascock 
v.  Bridges,  15  La.  Ann.  672;  King  v.  Ward,  77  111.  603;  Rover  v.  Webster, 
3  Clarke,  502;  Chapman  v.  Dodd,  10  Minn.  350.  In  Snow  v.  Allen,  1 
Stark.  409,  one  of  the  earliest  cases  in  which  the  advice  of  counsel  was 
set  up  as  a  defense,  Lord  Ellenborough  inquired:  "  How  can  it  be  con- 
tended here  that  the  defendant  acted  maliciously?  He  acted  igno- 
rantly.  *  *  *  He  was  acting  under  what  he  thought  was  good  advice, 
it  was  unfortunate  that  his  attorney  was  misled  by  Higgin's  Case  (Cro. 
Jac.  320)  ;  but  unless  you  can  show  that  the  defendant  was  actuated  by 
some  purposed  malice,  the  plaintiff  can  not  recover."  In  Sharpe  v. 
Johnstone  (59  Mo.  577;  s.  c.  76  Mo.  660),  Judge  Hough  said  (76  Mo. 
674)  :  "  Although  defendants  may  have  communicated  to  counsel  learned 
in  the  law,  all  the  facts  and  circumstances  bearing  upon  the  guilt  or  in- 
nocence of  the  plaintiff,  which  they  knew  or  by  any  reasonable  diligence 
could  have  ascertained,  yet  if,  notwithstanding  the  advice  of  counsel, 
they  believed  that  the  prosecution  would  fail,  and  they  were  actuated  in 
commencing  said  prosecution,  not  simply  by  angry  passions  or  hostile 
feelings,  but  by  a  desire  to  injure  and  wrong  the  plaintiff,  then  mostcer. 
tainly  they  could  not  be  said  to  have  consulted  counsel  in  good  faith,  and 
the  jury  would  have  been  warranted  in  finding  that  the  prosecution  was 
malicious."  See  the  annotation  of  the  author  to  Sharpe  v.  Johnstone, 
in  21  Am.  Law.  Reg.  (N.  S.)  582 

§    25 


CHAPTER    in. 

PERSONAL  LIBERTY. 

§  26.  Personal  liberty  —  How  guaranteed.  — It  is  alto- 
gether needless  in  this  connection  to  indulge  in  a  panegyric 
upon  the  blessings  of  guaranteed  personal  liberty.  The 
love  of  liberty,  of  freedom  from  irksome  and  unlawful 
restraints,  is  implanted  in  every  human  breast.  In  the 
American  Declaration  of  Independence,  and  in  the  bills  of 
rights  of  almost  every  State  Constitution,  we  find  that  per- 
sonal liberty  is  expressly  guaranteed  to  all  men  equally. 
But  notwithstanding  the  existence  of  these  fundamental 
and  constitutional  guaranties  of  personal  liberty,  the  as- 
tounding anomaly  of  the  slavery  of  an  entire  race  in  more 
than  one-third  of  the  States  of  the  American  Union,  dur- 
ing three-fourths  of  a  century  of  natural  existence,  gave 
the  lie  to  their  own  constitutional  declarations,  that  "  all 
men  are  endowed  by  their  Creator,  with  certain  inalienable 
rights,  among  which  are  the  right  to  life,  liberty,  and  the 
pursuit  of  happiness."  But,  happily,  this  contradiction  is 
now  a  thing  of  the  past,  and  in  accordance  with  the  provis- 
ions of  the  thirteenth  amendment  to  the  Constitution  of 
the  United  States,  it  is  now  the  fundamental  and  practically 
unchangeable  law  of  the  land,  that  "  neither  slavery  nor 
involuntary  servitude,  except  as  a  punishment  for  crime 
whereof  the  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States,  or  any  place  subject  to  their 
jurisdiction.1 

1  U.  S.  Const.  Amend.,  art.  XIII.    It  has  been  held  that  this  pro- 
vision of  the  United  States  Constitution,  ipso  facto  and  instantaneously 
abolished  any  existing  slavery  in  the  territory  of  Alaska,  when  it  came 
(74)  §    26 


PERSONAL  LIBERTY HOW  GUARANTEED.       75 

But  to  a  practical  understanding  of  the  effect  of  these 
constitutional  guaranties,  a  clear  idea  of  what  personal 
liberty  consists  is  necessary.  It  is  not  to  be  confounded 
with  a  license  to  do  what  one  pleases.  Liberty,  according 
to  Montesquieu,  consists  '*  only  in  the  power  of  doing  what 
we  ought  to  will,  and  in  not  being  constrained  to  do  what  we 
ought  not  to  will."  No  man  has  a  right  to  make  such  a 
use  of  his  liberty  as  to  commit  an  injury  to  the  rights  of 
others.  His  liberty  is  controlled  by  the  oft-quoted  maxim, 
sic  utere  tuo,  ut  alienum  non  Icedas.  Indeed  liberty  is  that 
amount  of  personal  freedom,  which  is  consistent  with  a 
strict  obedience  to  this  rule.  "  Liberty,"  in  the  words  of 
Mr.  Webster,  "  is  the  creature  of  law,  essentially  different 
from  that  authorized  licentiousness  that  trespasses  on  right. 
It  is  a  legal  and  refined  idea,  the  offspring  of  high  civiliza- 
tion, which  the  savage  never  understood,  and  never  can 
understand.  Liberty  exists  in  proportion  to  wholesome 
restraint ;  the  more  restraint  on  others  to  keep  off  from  us, 
the  more  liberty  we  have.  It  is  an  error  to  suppose  that 
liberty  consists  in  a  paucity  of  laws.  If  one  wants  few 
laws,  let  him  go  to  Turkey.  The  Turk  enjoys  that  bless- 
ing. The  working  of  our  complex  system,  full  of  checks 
on  legislative,  executive  and  judicial  power,  is  favorable  to 
liberty  and  justice.  Those  checks  and  restraints  are  so 
many  safeguards  set  around  individual  rights  and  interests. 
That  man  is  free  who  is  protected  from  injury."  *  While 
liberty  does  not  consist  in  the  paucity  of  laws,  still  it  is  only 
consistent  with  a  limitation  of  the  restrictive  laws  to  those 
which  exercise  a  wholesome  restraint.  "  That  man  is  free 
who  is  protected  from  injury,"  and  his  protection  involves 
necessarily  the  restraint  of  other  individuals  from  the  com- 
mission of  the  injury.  In  the  proper  balancing  of  the  con- 
tending interests  of  individuals,  personal  liberty  is  secured 

by  purchase  under  the  jurisdiction  of    the    United  States.    In  re  Sah 
Quah,  31  Fed.  327. 

1  Webster's  Works,  vol.  II.,  p.  393. 

26 


76  PERSONAL    LIBERTY. 

and  developed ;  any  further  restraint  is  unwholesome  and 
subversive  of  liberty.  As  Herbert  Spencer  has  expressed 
it,  **  every  man  may  claim  the  fullest  liberty  to  exercise 
his  faculties  compatible  with  the  possession  of  like  liberty 
by  every  other  man."  1 

The  constitutional  guaranties  £re  generally  unqualified, 
and  a  strict  construction  of  them  would  prohibit  all  limita- 
tions upon  liberty,  if  any  other  meaning  but  the  limited 
one  here  presented  were  given  to  the  word.  But  these 
guaranties  are  to  be  liberally  construed,  so  that  the  object 
of  them  may  be  fully  attained.  They  do  not  prohibit  the 
exercise  of  police  power  in  restraint  of  licentious  trespass 
upon  the  rights  of  others,  but  the  restrictive  measures  must 
be  kept  within  these  limits.  "  Powers,  which  can  be 
justified  only  on  this  specific  ground  (that  they  are  police 
regulations),  and  which  would  otherwise  be  clearly  prohib- 
ited by  the  constitution,  can  be  such  only  as  are  so  clearly 
necessary  to  the  safety,  comfort  and  well-being  of  society, 
or  so  imperatively  required  by  the  public  necessity,  as  to 
lead  to  the  rational  and  satisfactory  conclusion  that  the 
framers  of  the  constitution  could  not,  as  men  of  ordinary 
prudence  and  foresight,  have  intended  to  prohibit  their  ex- 
ercise in  the  particular  case,  notwithstanding  the  language 
of  the  prohibition  would  otherwise  include  it."  2 

The  restrictions  upon  personal  liberty,  permissible  under 
these  constitutional  limitations,  are  either  of  a  public  or 

1  Social  Statics,  p.  94.    "  Liberty  as  used  in  the  provision  of  the  four- 
teenth amendment  to  the  Federal  constitution,  forbidding  the  States  to 
deprive  any  person  of  life,  liberty,  or  property  without  due  process  of 
law,  includes,  it  seems,  not  merely  the  right  of  a  person  to  be  free  from 
physical  restraint,  but  to  be  free  in  the  enjoyment  of  all  his  faculties  in 
all  lawful  ways ;  to  live  and  work  where  he  will ;  to  earn  his  livelihood 
by  any  lawful  calling;  to  pursue  any  livelihood  or  avocation;  and  for 
that  purpose  to  enter  into  all  contracts  which  may  be  proper,  neces- 
sary, and  essential  to  carry  out  the  purposes  above  mentioned."    Allgeyer 
9.  State  of  Louisiana,  165  U.  S.  578. 

2  Christiancy,  J.,  in  People  v.  Jackson  &  Mich.   Plank  Road  Co.,  9 
Mich.  285. 

§    26 


PERSONAL  LIBERTY  —  HOW  GUARANTEED.        77 

private  nature.  In  consequence  of  the  mental  and  physical 
disabilities  of  certain  classes,  in  the  law  of  domestic  rela- 
tions, their  liberty  is  more  or  less  subjected  to  restraint, 
the  motive  being  their  own  benefit.  The  restraints  are  of 
a  private  nature,  imposed  under  the  law  by  private  persons 
who  stand  in  domestic  relation  to  those  whose  liberty  is 
restrained.  This  subject  will  be  discussed  in  a  subsequent 
connection.1  In  this  connection  we  are  only  concerned 
with  those  restraints  which  are  of  a  public  nature,  i.  et> 
those  which  are  imposed  by  government.  They  may  be 
subdivided  under  the  following  headings:  1.  The  police 
control  of  the  criminal  classes.  2.  The  police  control  of 
dangerous  classes,  other  than  by  criminal  prosecutions. 
3.  The  regulation  of  domicile  and  citizenship.  4.  Police 
control  of  morality  and  religion.  5.  Police  regulation  of 
the  freedom  of  speech  and  of  the  press.  6.  Police  regula- 
tion of  trades  and  professions. 

1  See  post,  ch.  12, 13,  H,  and  §§  180-207. 

§  26 


CHAPTEK    IY. 

GOVERNMENT  CONTROL  OF  CRIMINAL  CLASSES. 

SECTION  27.  The  effect  of  crime  on  the  rights  of  the  criminal. 

28.  Due  process  of  law. 

29.  Bills  of  attainder. 

30.  Ex  post  facto  law. 

31.  Cruel  and   unusual   punishment  in  forfeiture  of  personal 

liberty  and  rights  of  property. 

32.  Preliminary  confinement  to  answer  for  a  crime. 

33.  What  constitutes  a  lawful  arrest. 

34.  Arrest  without  warrant. 

35.  The  trial  of  the  accused. 

36.  The  trial  must  be  speedy. 

37.  The  trial  must  be  public. 

38.  Accused  entitled  to  counsel. 

39.  Indictment  by  grand  jury  or  by  information. 

40.  The  plea  of  defendant. 

41.  Trial  by  jury —  Legal  jeopardy. 

42.  Right  of  appeal. 

43.  Control  over  criminals  in  the  penitentiary. 
43a.  Convict  lease  system. 

§  27.  The  effect  of  crime  on  the  rights  of  the  crim- 
inal—  Power  of  State  to  declare  what  is  a  crime.  —  The 

commission  of  crime,  in  the  discretion  of  the  government, 
subjects  all  rights  of  the  criminal  to  the  possibility  of  for- 
feiture. Life,  liberty,  political  rights,  statutory  rights,  rela- 
tive rights,  all  or  any  of  them  may  be  forfeited  to  the  State, 
in  punishment  of  a  crime.  When  a  man  commits  a  crime  he 
forfeits  to  a  greater  or  less  extent  his  right  of  immunity 
from  harm.  The  forfeiture  for  crime  is  usually  confined 
to  life,  liberty  and  property,  and  political  rights,  although 
all  rights  in  the  wisdom  of  the  legislature  may  be  subjected 
to  forfeiture,  and  the  forfeiture  of  liberty  is  the  most 
common. 

(78)  §    27 


THE    EFFECT    OF    CRIME.  79 

But,  in  order  that  there  may  be  a  constitutional  forfeit- 
ure of  any  right,  as  a  punishment  for  the  doing  of  an  act, 
that  act  must  be  one  which  the  State  may  condemn  and 
punish  as  a  crime.  The  power  of  the  State  to  declare 
what  is  a  crime,  and  punishable  as  such,  is  not  unlimited. 
We  need  not  dwell  upon  Blackstone's  distinction  between 
mala  in  se  and  mala  prohibila,  for  that  distinction  is  neither 
scientific  nor  safe  as  a  guide  in  this  case.  On  the  one 
hand,  it  is  an  undoubted  principle  of  constitutional  law 
that  an  act  innocent  or  innocuous  per  se  cannot  be  prohibited 
and  punished  as  a  crime.  And,  on  the  other  hand,  that  the 
State  may  enlarge  the  category  of  existing  crimes,  by  the 
prohibition  and  punishment  as  crimes  of  acts,  which  at 
common  law  and  under  existing  statutes  were  permitted  to 
be  done,  subject  to  no  penalty,  civil  or  criminal,  or  which 
were  not  punishable  as  crimes. 

This  principle  of  constitutional  law  has  recently  been 
discussed  and  applied,  in  a  case *  in  which  the  constitution- 
ality of  a  New  York  statute  was  questioned,  which  statute 
made  it  a  criminal  misdemeanor  to  be  found  in  possession 
of  the  means  of  violating  a  law,  and  authorized  the  per- 
emptory destruction  of  such  means  by  any  constable  or 
peace  officer.2  In  holding  the  act  to  be  constitutional,  the 
Court  of  Appeals  said,  inter  alia:  "  The  legislature  may 
not  declare  that  to  be  a  crime  which  in  its  nature  is  and 
must  be  under  all  circumstances  innocent,  nor  can  it  in 
defining  crimes,  or  in  declaring  their  punishment,  take 
away  or  impair  any  inalienable  right  secured  by  the  con- 
stitution. But  it  may,  acting  within  these  limits  (express 
limitations  of  constitutions,  State  and  Federal)  make  acts 
criminal  which  before  were  innocent,  and  ordain  punish- 
ments in  future  cases  where  before  none  could  have  been 

1  Lawton  v.  Steele,  119  N.  Y.  226;  8.  c.  162  U.  S.  133. 

8  See,  also,  to  the  same  effect,  Ford  v.  State,  85  Md.  465,  in  which  it 
was  held  to  be  within  the  police  power  of  a  State  to  make  the  possession 
of  a  lottery  outfit,  or  any  part  thereof,  a  misdemeanor. 

§   27 


80  GOVERNMENT    CONTROL    OF    CRIMINAL    CLASSES. 

inflicted.  This,  in  its  nature,  is  a  legislative  power,  which 
by  the  constitution  of  the  State,  is  committed  to  the  dis- 
cretion of  the  legislative  body.  The  act  in  question  de- 
clares that  nets  set  in  certain  waters  are  public  nuisances, 
and  authorize  their  summary  destruction.  The  statute 
declares  and  defines  a  new  species  of  public  nuisance,  not 
known  to  the  common  law,  nor  declared  to  be  such  by  any 
prior  statute.  But  we  know  of  no  limitation  of  legislative 
power  which  precludes  the  legislature  from  enlarging  the 
category  of  public  nuisances,  or  from  declaring  places  or 
property  used  to  the  detriment  of  public  interests  or  to 
the  injury  of  the  health,  morals  or  welfare  of  the  commun- 
ity, public  nuisances,  although  not  such  at  common  law. 
There  are,  of  course,  limitations  upon  the  exercise  of  this 
power.  The  legislature  cannot  use  it  as  a  cover  for  with- 
drawing property  from  the  protection  of  the  law,  or  arbi- 
trarily, where  no  public  right  or  interest  is  involved,  declare 
property  a  nuisance  for -the  purpose  of  devoting  it  to 
destruction.  If  the  court  can  judicially  see  that  the  statute 
is  a  mere  evasion,  or  was  framed  for  the  purpose  of  indi- 
vidual oppression,  it  will  set  it  aside  as  unconstitutional, 
but  not  otherwise." 

A  similar  question,  as  to  the  power  of  the  State  to  create 
new  crimes  by  statute,  was  raised  in  respect  to  a  California 
statute,  which  declared  a  husband  guilty  of  a  felony  who 
"  connives  at,  consents  to,  or  permits,"  his  wife  to  be  placed 
or  left  in  a  house  of  prostitution.  The  statute  was  held  to 
be  constitutional,  notwithstanding  the  statutory  crime  there 
created  was  a  mere  operation  of  the  mind,  not  evidenced 
by  any  overt  act.1  It  has  also  been  held  to  be  a  constitu- 
tional exercise  of  police  power  to  make  it  criminal  for  any 
person  doing  business  as  a  banker  to  receive  deposits  after 
he  knows  that  the  bank  is  insolvent.2 

1  People  v.  Bosquet,  116  Cal.  75. 
*  Meadowcroft  v.  People,  163  111.  56. 

§  27 


THE   EFFECT   OF   CRIME.  81 

There  are,  however,  some  express  constitutional  limita- 
tions upon  the  power  of  the  State  to  declare  that  a  crime, 
which  may  be  held  to  create  a  civil  liability.  Thus,  many 
of  the  State  constitutions  contain  an  express  prohibition  of 
imprisonment  for  debt.  Difficulty  is  experienced  in  deter- 
mining, when  this  constitutional  provision  is  infringed,  in 
those  cases  where  the  element  of  fraud  enters  into  the  case. 
The  cases  seem,  generally,  to  agree  that  this  constitutional 
protection  from  liability  to  imprisonment  is  intended  solely 
for  the  honest  but  unsuccessful  debtor,  and  cannot  be  in- 
voked in  behalf  of  the  dishonest  or  fraudulent  debtor. 
For  example,  in  applying  this  question  of  constitutionality 
to  the  statutes,  now  very  common,  which  provide  for  the 
punishment  of  hotel  guests  who  fraudulently  and  with  in- 
tent to  cheat,  refuse  to  pay  their  bills,  a  distinction  is  made 
by  the  courts  between  the  honest  and  the  fraudulent  failures 
to  pay  such  bills ;  holding  that  the  statutes  are  only  in- 
tended to  punish  those  who  willfully  and  fraudulently 
contract  such  bills,  and  hence  do  not  come  within  the  con- 
stitutional prohibition  of  imprisonment  for  debt.1 

On  the  same  general  principle,  it  has  been  held  that  im- 
prisonment, for  refusal  to  obey  the  order  of  court,  in 
bastardy  proceedings,  to  pay  an  allowance  to  the  mother 
of  the  child,2  or  to  pay  over  to  another  money  which  is  in 
one's  possession,  but  under  the  control  of  the  court,3  does 
not  fall  within  the  constitutional  prohibition  of  imprison- 
ment for  debt.  It  has  also  been  held  to  be  constitutional 
for  a  city  ordinance  to  provide  imprisonment  for  employees 

1  Ex  parte  King,  102  Ala.  182;  State  v.  Yardley,  95  Tenn.  546;  Hutch- 
inson  v.  Davis,  58  111.  App.  368.  In  the  last  case,  this  distinction  between 
honest  and  dishonest  failures  to  pay  hotel  bills  is  clearly  set  forth. 
See  also  State  v.  Norman,  110  N.  C.  484,  applying  the  same  principle  to 
the  general  cases  of  fraudulently  contracted  debts. 

3  State  v.  Wynne,  116  N.  C.  981.  So,  also,  where  the  court  imprisons 
husband  for  refusing  to  pay  alimony  to  his  wife,  under  order  of  the  court. 
Kurd  v.  Hurd  (Minn.),  65  N.  W.  728. 

3  State  ex  rel.  Audibert  v.  Mauberret,  47  La.  Ann.  334. 

«  §  27 


82  GOVERNMENT   CONTROL   OF   CRIMINAL    CLASSES. 

of  a  water  company,  as  a  penalty  for  their  violation  of  the 
contract  between  the  city  and  the  water  company.1  On  the 
other  hand,  it  has  been  held  to  be  a  violation  of  the  con- 
stitutional prohibition  of  imprisonment  for  debt,  where  a 
statute  provides  for  the  punishment  by  fine,  and  by  im- 
prisonment if  he  fails  to  pay  the  fine,  of  a  banker  who 
receives  deposits  after  he  knows  himself  to  be  in  an  insol- 
vent condition.2  And  it  has,  likewise,  been  held  that  a 
statute  is  unconstitutional  which  directs  the  imprisonment 
of  a  debtor  who  has  disposed  of  all  his  property,  with  the 
intent  to  defraud  his  creditors.8  On  the  other  hand,  it  has 
been  held  to  be  constitutional  for  a  statute  to  provide  for 
the  arrest  of  debtors,  who  are  removing  and  disposing  of 
their  property  in  fraud  of  creditors.4 

§  28.  Due  process  of  law.  —  But  the  forfeiture  of  rights 
is  limited  and  controlled  by  constitutional  restrictions,  and  it 
may  be  stated  as  a  general  proposition,  that  such  a  forfeit- 
ure, as  a  punishment  for  crime,  can  only  be  effected  after 
a  judicial  examination  and  a  conviction  of  the  crime  charged. 
In  the  Magna  Charta,  in  the  charter  of  Henry  III.,  in  the 
Petition  of  Eight,  in  the  Bill  of  Eights,  in  England,  and  in 
this  country  in  all  the  constitutions,  both  State  and  national, 
it  is  substantially  provided  that  no  man  shall  be  deprived 
of  his  life,  liberty,  or  property,  unless  by  the  judgment  of 
his  peers  or  the  law  of  the  land.  In  some  State  constitu- 
tions, the  clause  **  without  due  process  of  law  "  is  employed 
in  the  place  of  "  the  judgment  of  his  peers  or  the  law  of 
the  land ; "  but  the  practical  effect  is  the  same  in  all  cases, 
whatever  may  be  the  exact  phraseology  of  this  constitu- 
tional provision.6  Perhaps  the  scope  of  the  limitation  can- 

1  Crosby  v.  City  Council  of  Montgomery,  108  Ala.  498. 

2  Carr  v.  State,  106  Ala.  35. 

8  Drummer  v.  Nungesser,  107  Mich.  481. 
4  Light  v.  Canadian  Co.  Bank,  2  Okl.  543  (37  P.  1075). 
«  Cooley  Const.  Lira.  *352,  *353. 
§   28 


BILLS   OF   ATTAINEB.  83 

not  be  better  explained  than  by  the  words  of  Mr.  Webster : 
«« By  the  law  of  the  land  is  most  clearly  intended  the  gen- 
eral law;  a  law  which  hears  before  it  condemns;  which 
proceeds  upon  inquiry,  and  renders  judgment  only  after 
trial.  The  meaning  is  that  every  citizen  shall  hold  his  life, 
liberty,  property  and  immunities  under  the  protection  of 
the  general  rules  which  govern  society.  Everything  which 
may  pass  under  the  form  of  an  enactment  is  not  therefore 
to  be  considered  the  law  of  the  land.  If  this  were  so,  acts 
of  attainder,  bills  of  pains  and  penalties,  acts  of  confisca- 
tion, acts  reversing  judgments,  and  acts  directly  transfer- 
ring one  man's  estate  to  another,  legislative  judgments, 
decrees  and  forfeitures  in  all  possible  forms,  would  be  the 
law  of  the  land.  Such  a  strange  construction  would  render 
constitutional  provisions  of  the  highest  importance  com- 
pletely inoperative  and  void.  It  would  tend  directly  to 
establish  the  union  of  all  powers  in  the  legislature.  There 
would  be  no  general  permanent  law  for  courts  to  adminis- 
ter or  men  to  live  under.  The  administration  of  justice 
would  be  an  empty  form,  an  idle  ceremony.  Judges  would 
sit  to  execute  legislative  judgments  and  decrees,  not  to 
declare  the  law  or  administer  the  justice  of  the  country."  l 

§  29.  Bills  of  attainder.  — A  further  limitation  is  im- 
posed by  the  constitution  of  the  United  States,  which  prohib- 
its the  enactment  of  bills  of  attainder  by  Congress  and  by  the 
legislatures  of  the  several  States.2  A  bill  of  attainder  is  a 
legislative  conviction  for  crime,  operating  against  a  particu- 
lar individual,  or  some  one  or  more  classes  of  individuals. 
According  to  the  ancient  English  meaning  of  the  term,  it 
included  only  those  legislative  enactments,  which  pro- 
nounced the  judgment  of  death.  But  a  broader  significa- 

1  Dartmouth  College  Case,  4  Wheat.  619;  Webster's  Works,  vol.  V., 
p.  487.  For  a  full  and  exhaustive  discussion  and  treatment  of  this 
constitutional  limitation,  see  Cooley  Const.  Lim.  *351-*413. 

«  U.  S.  Const.,  art.  I.,  §§9,  10. 

§    29 


84  GOVERNMENT    CONTROL    OF    CRIMINAL    CLASSES. 

tion  is  given  to  the  word  in  this  constitutional  limitation, 
and  it  includes  all  attempts  on  the  part  of  Congress  to  inflict 
punishment  and  penalties  upon  individuals  for  alleged 
crimes  of  every  description.  The  term  bill  of  attainder  is 
now  used  to  include  all  bills  of  pains  and  penalties.  '« I 
think  it  will  be  found  that  the  following  comprise  those 
essential  elements  of  bills  of  attainder,  in  addition  to  the 
one  already  mentioned  (which  was  that  certain  persons  were 
declared  attainted  and  their  inheritable  blood  corrupted), 
which  distinguish  them  from  other  legislation,  and  which 
made  them  so  obnoxious  to  the  statesmen  who  organized 
our  government:  1.  They  were  convictions  and  sentences 
pronounced  by  the  legislative  department  of  the  govern- 
ment, instead  of  the  judicial.  2.  The  sentence  pronounced 
and  the  punishment  inflicted  were  determined  by  no  pre- 
vious law  or  fixed  rule.  The  investigation  into  the  guilt  of 
the  accused,  if  any  such  were  made,  was  not  necessarily  or 
generally  conducted  in  his  presence  or  that  of  his  counsel, 
and  no  recognized  rule  of  evidence  governed  the  inquiry."  l 
Since  the  formation  of  the  Union,  there  has  happily  been 
but  one  occasion  when  there  was  any  inducement  to  the 
enactment  of  such  legislative  judgments  and  convictions, 
and  that  was  at  the  close  of  the  late  civil  war.  Congress 
provided  by  statute  that  in  order  that  one  may  enter  upon 
the  performance  of  the  duties  of  any  office  of  trust  or 
profit  under  the  government  of  the  United  States,  except- 
ing the  President  of  the  United  States,  he  shall  theretofore 
take  and  subscribe  an  oath  that  he  had  not  aided  or  given 

~ 

countenance  to  the  rebellion  against  the  United  States.  A 
second  act  was  passed,  prescribing  a  similar  oath  to  be 
taken  by  candidates  for  admission  to  practice  in  any  of  the 
courts  of  the  United  States.  The  Supreme  Court  held 
that  the  latter  statute  was  void,  because  it  offended  this 
constitutional  provision,  prohibiting  the  enactment  of  bills 

1  Miller,  J.,  In  Ex  parte  Garland,  4  Wall.  333. 
§    29 


BILLS   OF   ATTAINDER.  85 

of  attainder.1  Inasmuch  as  the  right  to  hold  a  public  office 
is  a  privilege  and  not  a  right,  the  former  act  of  Congress, 
which  provided  the  so-called  "iron-clad"  oath  of  office, 
would  not  be  unconstitutional,  unless  the  qualifications  of 
the  candidates  for  office,  to  which  the  statute  applied,  are 
stipulated  in  the  constitution.  Congress,  or  a  legislature, 
has  no  power  to  change  the  qualifications  for  office,  where 
they  have  already  been  determined  by  the  constitution.7 
It  is,  probably,  for  this  reason  that  the  office  of  President 
was  excluded  from  the  operation  of  this  statute.  In  article 
I.,  section  1,  of  the  constitution  of  the  United  States,  the 
oath  of  office  is  prescribed  which  the  President  is  required 
to  take  before  entering  upon  the  duties  of  his  office. 

Similar  legislation  was  enacted  in  some  of  the  States. 
In  Missouri,  the  constitution  of  '65  contained  a  clause, 
which  required  a  similar  oath  to  be  taken  by  all  voters, 
officers  of  State,  county,  town,  or  city,  to  be  elected  or 
already  elected  ;  attorneys  at  law,  in  order  to  practice  law ; 
clergymen,  in  order  to  teach,  and  preach  or  solemnize  mar- 
riages ;  professors  and  teachers  of  educational  institutions, 
etc.  Although  the  State  court,  as  it  was  then  constituted, 
did  not  hesitate  to  pronounce  these  provisions  valid,  the 
Supreme  Court  of  the  United  States  has  declared  them 
void  as  being  in  violation  of  the  national  constitution,  which 
prohibits  the  enactment  of  bills  of  attainder  by  the  States.3 

1  Ex  parte  Garland,  4  Wall.  333;  Drehman  v.  Stifle,  8  Wall.  595. 

*  See  Cooley  Const.  Lim.  *64,  note. 

*  Cummings  v.  Missouri,  4  Wall.  277;  s.  c.  State  v.  Cumraings,  36  Mo. 
263.    The  constitutional  provision  was  likewise  upheld  in  the  following 
cases:  State  v.  Garesche,  36  Mo.  256,  in  its  application  to  an  attorney; 
State  v.  Bernoudy,  36  Mo.  279,  in  the  case  of  the  recorder  of  St.  Louis. 
In  State  v.  Adams,  44  Mo.  570,  after  the  Cummings  case  had  been  de- 
cided by  the  Supreme  Court  of  the  United  States  against  the  State,  and 
after  also  a  change  in  the  personnel  of  the  State  court,  a  legislative  act, 
which  declared  the  Board  of  Curators  of  St.  Charles  College  deprived 
of  their  office,  for  failure  to  take  the  oath  of  loyalty,  was  held  to  be  void 
as  being  a  bill  of  attainder.    A  statute  of  thin  kind  was  likewise  passed 
by  the  legislature  of  West  Virginia,  and  although  sustained  at  first  by 

§   29 


86  GOVERNMENT   CONTROL    OF    CRIMINAL    CLASSES. 

Coming  under  the  head  of  bills  of  attainder,  the  New 
York  statute  (Laws  of  1893,  ch.  661,  as  amended  by  Laws 
of  1895,  ch.  398)  might  be  cited,  which  makes  it  a  misde- 
meanor for  any  one  to  practice  medicine,  who  has  been 
convicted  of  a  felony,  where  the  statute  is  made  to  apply 
to  persons  who  were  convicted  before  it  became  a  law.  In 
a  case,  conveying  these  facts,  the  statute  was  declared  to 
be  unconstitutional  because  it  was  ex  post  facto  .* 

§  30.  Ex  post  facto  laws. —  Another  constitutional  pro- 
vision, intended  to  furnish  to  individual  liberty  ample  protec- 
tion against  the  exercise  of  arbitrary  power,  prohibits  the 
enactment  of  ex  post  facto  laws  by  Congress  as  well  as  by 
the  State  legislatures.2  The  literal  meaning  of  the  pro- 
hibition is  that  no  law  can  be  passed  which  will  apply  to 
and  change,  the  legal  character  of  an  act  already  done. 
But  at  a  very  early  day  in  the  history  of  the  constitution, 
the  clause  was  given  a  more  technical  and  narrow  construc- 
tion, which  has  ever  since  limited  the  application  of  the  pro- 
vision. In  the  leading  case,3  Judge  Chase  explains  the 
meaning  of  the  term  ex  post  facto  in  the  following  language: 
"  The  prohibition  in  the  letter  is  not  to  pass  any  law  con- 
cerning or  after  the  fact;  but  the  plain  and  obvious  meaning 
and  intention  of  the  prohibition  is  this:  that  the  legislatures 
of  the  several  States  shall  not  pass  laws  after  a  fact  done  by 
a  subject  or  citizen,  which  shall  have  relation  to  such  fact, 
and  punish  him  for  having  done  it.  The  prohibition,  con- 
sidered in  this  light,  is  an  additional  bulwark  in  favor  of  the 
personal  security  of  the  subject,  to  protect  his  person  from 

the  Supreme  Court  of  the  State  (Beirne  v.  Brown,  4  W.  Va.  72;  Pierce 
t?.  Karskadon,  4  W.  Va.  234),  it  was  subsequently  held  by  the  Supreme 
Court  of  the  State,  and  of  the  United  States,  that  the  act  was  unconsti- 
tutional. Kyle  v.  Jenkins,  6  W.  Va.  371;  Lynch  v.  Hoffman,  7  W.  Va. 
553;  Pearce  v.  Karskadon,  16  Wall.  234. 

1  People  v.  Hawker,  14  App.  Div.  188;  43  N.  Y.  S.  516. 

a  U.  S.  Const.,  art.  I.,  §§  9  and  10. 

8  Calder  v.  Bull,  3  Ball.  386,  390. 
§    30 


EX    POST    FACTO    LAWS.  87 

punishment  by  legislative  acts  having  a  retrospective  oper- 
ation. I  do  not  think  it  was  inserted  to  secure  the  citizen  in 
his  private  rights  of  either  property  or  contracts.  The  pro- 
hibitions not  to  make  anything  but  gold  and  silver  a  tender 
in  payment  of  debts,  and  not  to  pass  any  law  impairing  the 
obligation  of  contracts,  were  inserted  to  secure  private 
rights;  but  the  restriction  not  to  pass  any  ex  post  facto  law 
was  to  secure  the  person  of  the  subject  from  injury  or  pun- 
ishment, in  consequence  of  such  law.  If  the  prohibition 
against  making  ex  post  facto  laws  was  intended  to  secure 
personal  rights  from  being  affected  or  injured  by  such  laws, 
and  the  prohibition  is  sufficiently  extensive  for  that  object, 
the  other  restraints  I  have  enumerated  were  unnecessary, 
and  therefore  improper,  for  both  of  them  are  retrospective. 
"I  will  state  what  laws  I  consider  ex  post  facto  laws, 
within  the  words  and  the  intent  of  the  prohibition.  1st. 
Every  law  that  makes  an  action,  done  before  the  passing  of 
the  law,  and  which  was  innocent  when  done,  criminal,  and 
punishes  such  action.  2d.  Every  law  that  aggravates  a 
crime,  or  makes  it  greater  than  it  was  when  committed. 
3d.  Every  law  that  changes  the  punishment,  and  inflicts  a 
greater  punishment  than  the  law  annexed  to  the  crime  when 
committed.  4th.  Every  law  that  alters  the  legal  rules  of 
evidence,  and  receives  less  or  different  testimony  than  the 
law  required  at  the  time  of  the  commission  of  the  offense, 
in  order  to  convict  the  offender.  All  these  and  similar 
laws  are  manifestly  unjust  and  oppressive.  In  my  opinion, 
the  true  distinction  is  between  ex  post  facto  laws  and  retro- 
spective laws.  Every  ex  post  facto  law  must  necessarily  be 
retrospective,  but  every  retrospective  law  is  not  an  ex  post 
/acfolaw;  the  former  only  are  prohibited.  Every  law  that 
takes  away  or  impairs  rights  vested,  agreeably  to  existing 
laws,  is  retrospective,  and  is  generally  unjust,  and  may  be 
oppressive ;  and  there  is  a  good  general  rule,  that  a  law 
should  have  no  retrospect ;  but  there  are  cases  in  which 
laws  may  justly,  and  for  the  benefit  of  the  community,  and 

§  30 


88  GOVERNMENT    CONTROL    OF    CRIMINAL    CLASSES. 

also  of  individuals,  relate  to  a  time  antecedent  to  their  com- 
mencement; as  statutes  of  oblivion  or  of  pardon.  They 
are  certainly  retrospective,  and  literally  both  concerning 
and  after  the  facts  committed.  But  I  do  not  consider  any 
law  ex  post  facto,  within  the  prohibition  that  mollifies  the 
rigor  of  the  criminal  law;  but  only  those  that  create  or 
aggravate  the  crime,  or  increase  the  punishment,  or  change 
the  rules  of  evidence  for  the  purpose  of  conviction.  Every 
law  that  is  to  have  an  operation  before  the  making  thereof, 
as  to  commence  at  an  antecedent  time,  or  to  save  time  from 
the  statute  of  limitations,  or  to  excuse  acts  which  were  un- 
lawful, and  before  committed,  and  the  like,  is  retrospective. 
But  such  laws  may  be  proper  or  necessary,  as  the  case  may 
be.  There  is  a  great  and  apparent  difference  between  mak- 
ing an  unlawful  act  lawful,  and  the  making  an  innocent 
action  criminal,  and  punishing  it  as  a  crime.  The  expres- 
sions ex  post  facto  are  technical ;  they  had  been  in  use  long 
before  the  revolution,  and  had  acquired  an  appropriate 
meaning  by  legislators,  lawyers  and  authors."  1  It  is  not 

1  See  Fletcher  v.  Peck,  6  Cranch,  87;  Ogden  v.  Saunders,  12  Wheat. 
213;  Satterlee  v.  Matthewson,  2  Pet.  330;  Watson  v.  Mercer,  8  Pet.  88; 
Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420;  Carpenter  v.  Penn- 
sylvania, 17  How.  456;  Hopt  v.  Utah,  110  U.  S.  574;  Lock  v.  Dane,  9 
Mass.  360;  Woart  v.  Winnick,  3  N.  H.  473;  Dash  v.  Van  Kleek.  7  Johns. 
477;  Moore  v.  State,  43  N.  J.  203;  Perry's  Case,  3  Gratt.  632;  Evans  v. 
Montgomery,  4  Watts  &  S.  218;  Huber  v.  Reilly,  53  Pa.  St.  115.  See  In 
re  Jaehne,  35  Fed.  357;  People  v.  O'Neill,  109  N.  Y.  251,  in  which  it  was 
held  that  the  Penal  Code,  N.  Y.,  §  72,  was  not  ex  post  facto,  for  the  rea- 
son that  this  provision,  from  the  effect  given  to  it  by  §  2143  of  the  con- 
solidation act  of  New  York  City,  impliedly  repeals  §  58  of  the  con- 
solidation act,  which  latter  section  prescribed  a  less  punishment  for  the 
same  offense.  In  Lovett  v.  State,  33  Fla.  389,  a  statute  changing  the 
degrees  of  homicide  could  not  be  made  to  apply  to  offenses  already  com- 
mitted when  the  statute  became  a  law.  But  a  retrospective  law  will  be 
ex  post  facto,  notwithstanding  it  does  not  provide  for  a  criminal  prose- 
cution. The  exaction  of  any  penalty  for  the  doing  of  an  act,  which  be- 
fore the  law  was  altogether  lawful,  makes  the  law  ex  post  facto.  Fal- 
coner v.  Campbell,  2  McLean,  195;  Wilson  v.  Ohio,  etc.,  R.  R.  Co.,  64  111. 
542.  A  statute  has  also  been  held  to  be  ex  post  facto,  which  makes  it  a 
misdemeanor  for  one  to  practice  medicine  who  has  been  convicted  of 
§  30 


EX  POST   FACTO    LAWS.  89 

difficult  to  understand  the  scope  of  the  cosntitutional  pro- 
tection against  ex  post  facto  laws,  except  as  to  those  cases, 
jn  which  it  is  held  that  when  a  less  punishment  is  inflicted 
the  law  is  not  ex  post  facto.  The  difficulty  in  these  cases  is 
a  practical  one,  arising  from  an  uncertainty  concerning  the 
relative  grievousness  and  weight  of  different  kinds  of  pun- 
ishment. That  a  law  is  constitutional,  which  mitigates  the 
punishment  of  crimes  already  committed,  cannot  be 
doubted.1  But  all  punishments  are  degrading,  and  in  no 
case  of  an  actual  change  of  punishment,  as  for  example  from 
imprisonment  to  whipping,  or  vice  versa,  can  the  court  with 
certainty  say  that  the  change  works  a  mitigation  of  the 
punishment.  But  while  the  courts  of  many  of  the  States 
have  undertaken  to  decide  this  question  of  fact,2  the  New 
York  Court  of  Appeals  has  held  that  "  a  law  changing  the 
punishment  for  offenses  committed  before  its  passage  is  ex 
post  facto  and  void,  under  the  constitution,  unless  the  change 
consists  in  the  remission  of  some  separable  part  of  the  pun- 
ishment before  prescribed,  or  is  referable  to  prison  disci- 
pline or  penal  administration,  as  its  primary  object."3 

a  felony,  so  far  as  the  statute  is  made  to  apply  to  persons  who  were  con- 
victed prior  to  its  enactment.  People  v.  Hawker,  14  App.  Div.  188;  43 
N.  Y.  S.516. 

1  Woart  v.  Winnick,  3  N.  H.  179;  State  v.  Arlin,  39  N.  H.  179;  Hartung 
v.  People,  22  N.  Y.  95,  105;  Shepherd  v.  People,  25  N.  Y.  124;  State  v. 
Williams,  2  Rich.  418;  Boston  v.  Cummings,  16  Ga.  102;  Strong  ».  State, 
1  Blackf.  193;  Clarke  v.  State,  23  Miss.  261;  Maul  v.  State,  25  Tex.  166; 
Turner  v.  State,  40  Ala.  21.     It  has  thus  been  held  that  a  law  is  not  ex 
post  facto,  which  repeals  or  changes  the  minimum  punishment,  if  the 
maximum  punishment  remains  unchanged.    People  ».  Hayes,  140  N.  Y. 
484;  Commonwealth  v.  Brown,  167  Mass.  144.     So,  also,  an  act  of  Con- 
gress, which  extended  the  time  for  the  registration  of  Chinese  laborers, 
was  held  not  to  be  ex  post  facto,  because  it  excepted  from  its  provis- 
ions those  who  had  been  theretofore  convicted  of  felony.     United  States 
t».  Chew  Cheong,  61  Fed.  200. 

2  See  State  v.  Arlin,  39  N.  H.  179;  State  v.  Williams,  2  Rich.  418; 
Strong  v.  State,  1  Blackf.  193;  Berber  v.  State,  7  Tex.  69. 

3  Davies,  J.,  in  Ratzky  v.  People,  29  N.  Y.  124.    See  Shepherd  v.  Peo- 
ple, 25  N.  Y.  406.     "  In  my  opinion,"  says  Denio,  J.,  in  Hartung  v.  Peo- 

§    30 


90  GOVERNMENT   CONTROL   OF   CRIMINAL   CLA88F8. 

Except  in  regard  to  the  material  changes  in  the  rules  of 
evidence  which  tend  to  make  conviction  easier,  lawg  for 

pie,  22  N.  Y.  95, 105,  "  it  would  be  perfectly  competent  for  the  legislature, 
by  a  general  law,  to  remit  any  separable  portion  of  the  prescribed  pun- 
ishment. For  instance,  if  the  punishment  were  fine  and  imprisonment,  a 
law  which  should  dispense  with  either  the  fine  or  the  imprisonment 
might,  I  think,  be  lawfully  applied  to  existing  offenses;  and  so,  in  my 
opinion,  the  term  of  imprisonment  might  be  reduced,  or  the  number 
of  stripes  diminished,  in  cases  punishable  in  that  manner.  Anything 
which,  if  applied  to  an  individual  sentence,  would  fairly  fall  within  the 
idea  of  a  remission  of  a  part  of  the  sentence,  would  not  be  liable  to  ob- 
jection. And  any  change  which  should  be  referable  to  prison  discipline 
or  penal  administration,  as  its  primary  object,  might  also  be  made  to  take 
effect  upon  past  as  well  as  future  offenses ;  as  changes  in  the  manner  or 
kind  of  employment  of  convicts  sentenced  to  hard  labor,  the  system  of 
supervision,  the  means  of  restraint,  or  the  like.  Changes  of  this  sort 
might  operate  to  increase  or  mitigate  the  severity  of  the  punishment  of 
the  convict,  but  would  not  raise  any  question  under  the  constitutional 
provision  we  are  considering.  The  change  wrought  by  the  act  of  1860,  in 
the  punishment  of  the  existing  offenses  of  murder,  does  not  fall  within 
either  of  these  exceptions.  It  is  to  be  construed  to  vest  in  the  gover- 
nor a  discretion  to  determine  whether  the  convict  should  be  executed 
or  remain  a  perpetual  prisoner  at  hard  labor,  this  would  only  be  equiva- 
lent to  what  he  might  do  under  the  authority  to  commute  a  sentence. 
But  he  can,  under  the  constitution,  only  do  this  once  for  all.  If  he  re- 
fuses the  pardon,  the  convict  is  executed  according  to  the  sentence.  If  he 
grants  it,  his  jurisdiction  of  the  case  ends.  The  act  in  question  places  the 
convict  at  the  mercy  of  the  governor  in  office  at  the  expiration  of  one 
year  from  the  time  of  the  conviction,  and  of  all  of  his  successors  during 
the  lifetime  of  the  convict.  He  may  be  ordered  to  execution  at  any  time, 
upon  any  notice,  or  without  notice.  Under  one  of  the  repealed  sections 
of  the  Revised  Statutes,  it  was  required  that  a  period  should  intervene 
between  the  sentence  and  the  execution  of  not  less  than  four,  no  more 
than  eight  weeks.  If  we  stop  here,  the  change  effected  by  the  statute  is 
between  an  execution  within  a  limited  time,  to  be  prescribed  by  the  court, 
or  a  pardon  or  commutation  during  that  period,  on  the  one  hand,  and 
the  placing  the  convict  at  the  mercy  of  the  executive  magistrate  for  the 
time,  and  his  successors,  to  be  executed  at  his  pleasure  at  any  time 
after  one  year,  on  the  other.  The  sword  is  indefinitely  suspended  over 
his  head,  ready  to  fall  at  any  time.  It  is  not  enough  to  say,  if  ever  that 
can  be  said,  that  most  persons  would  probably  prefer  such  a  fate  to  the 
former  capital  sentence.  It  is  enough  to  bring  the  law  within  the  con- 
demnation of  the  constitution,  that  it  changes  the  punishment  after  the 
commission  of  the  offense,  by  substituting  for  the  prescribed  penalty  a 
different  one.  We  have  no  means  of  saying  whether  one  or  the  other 
§  30 


EX   POST   FACTO  LAWS.  91 

the  regulation  of  criminal  procedure  are  always  subject  to 
repeal  or  amendment,  and  the  new  law  will  govern  all 
prosecutions  that  are  begun  or  are  in  progress  after  its  en- 
actment, it  matters  not  when  the  offenses  were  committed. 
Such  a  law  is  not  deemed  an  ex  post  facto  law  when  applied 
to  the  prosecution  of  offenses  committed  before  the  change 
in  the  law.1 

would  be  the  most  severe  in  a  given  case.  That  would  depend  upon 
the  disposition  and  temperament  of  the  convict.  The  legislature  can 
not  thus  experiment  upon  the  criminal  law.  The  law,  moreover,  pre- 
scribes one  year's  imprisonment,  at  hard  labor  in  the  State  prison,  in 
addition  to  the  punishment  of  death.  In  every  case  of  the  execution  of  a 
capital  sentence,  it  must  be  preceded  by  the  year's  imprisonment  at  hard 
labor.  *  *  *  It  is  enough,  in  my  opinion,  that  it  changes  it  (the  pun- 
ishment) in  any  manner,  except  by  dispensing  with  divisible  portions  of 
it;  but  upon  the  other  definition  announced  by  Judge  Chase,  where  it  is 
implied  that  the  change  must  be  from  a  less  to  a  greater  punishment,  this 
act  cannot  be  sustained." 

1  Gut  v.  State,  9  Wall.  35;  State  v.  Learned,  47  Me.  426;  State  v.  Cor- 
son,  59  Me.  137;  Commonwealth  v.  Hall,  97  Mass.  570;  Commonwealth??. 
Dorsey,  103  Mass.  412;  State  v.  Wilsou,  48  N.  H.  398;  Walter  v.  People, 
32  N.  Y.  147;  Stokes  v.  People,  53  N.  Y.  164;  Warren  v.  Commonwealth, 
37  Pa.  St.  45;  Rand  v.  Commonwealth,  9  Gratt.  738;  State  v.  Williams, 
2  Rich.  418;  Jones  v.  State,  1  Ga.  610;  Hart  v.  State,  40  Ala.  32;  State  v. 
Manning,  14  Tex.  402;  Bowling  v.  Mississippi,  13  Miss.  664;  Walton  v. 
Commonwealth,  16  B.  Mon.  15;  Lasureo.  State,  10  Ohio  St.  43;  McLaugh- 
lin  v.  State,  45  Ind.  338;  Brown  v.  People,  29  Mich.  '232;  People  v.  Olm- 
stead,  30  Mich.  431;  Sullivan  v.  Oneida,  61  111.  242;  State  v.  Ryan,  13 
Minn.  370;  State  v.  O'Flaherty,  7  Nev.  153.  In  State  v.  Tatlow  (Mo.),  38 
S.  W.  552,  an  act  relating  to  the  change  of  venue  was  held  to  be  applicable 
to  crimes  committed  prior  to  the  enactment  of  the  law.  So,  likewise, 
it  is  not  ex  post  facto,  to  apply  to  existing  offenses  a  law,  enacted  sub- 
sequently, which  shortens  the  time  for  making  challenges.  State  v. 
Duestrow,  137  Mo.  44.  In  State  v.  Bates  (Utah),  47  P.  78,  and  State  v. 
Covington  (Utah),  50  P.  526,  a  similar  conclusion  was  reached,  where,  a 
constitutional  provision,  reducing  the  number  of  jurors  in  criminal  pros- 
ecutions to  less  than  twelve,  was  made  to  apply  to  the  trial  for  a  crime 
which  had  been  committed  before  the  constitutional  provision  took  effect. 

And  the  Supreme  Court  of  the  United  States  has  held  that  a  constitu- 
tional amendment,  which  confers  criminal  jurisdiction  upon  a  division  of 
the  Supreme  Court  of  a  State,  less  in  numbers  and  different  in  personnel, 
from  the  court  as  it  was  organized  when  the  crime  was  committed,  does 
not  come  within  the  definition  of  ex  post  facto  laws  (Duncan  v.  State,  152 

§  30 


92  GOVERNMENT   CONTROL  OF   CRIMINAL   CLASSES. 

The  principle  involved  in  the  prohibition  of  ex  post 
facto  laws,  is  also  applicable  to  the  rights  and  privileges 
of  the  convict  in  the  penitentiary,  wherever  the  new  law 
tends  to  increase  the  hardship  of  the  imprisonment.1  But 
a  law  is  not  ex  post  facto  which  mitigates  these  hard- 
ships, or  which  shortens  the  term  of  imprisonment  under 
the  so-called  "merit"  rule.  Thus,  it  was  held  to  be 
constitutional  to  provide  for  the  reduction  in  the  length 
of  terms  of  imprisonment,  on  account  of  good  behavior, 
according  to  a  prescribed  scale,  but  providing  for  less 
favorable  consideration  to  those  who  were  serving  a  second 
term.  The  fact  that  one,  who  had  served  a  term  prior  to 
the  enactment  of  the  law,  was  discriminated  against,  did 
not  make  it  an  ex  post  facto  law.3  Nor  is  it  a  case  of  ex 
post  facto  law  when,  under  the  so-called  Habitual  Crim- 
inals Acts,  a  heavier  penalty  is  imposed  for  the  second  or 
third  offense,  where  the  first  offense  was  committed  and 
the  penalty  therefor  inflicted  and  suffered,  before  this 
law  was  passed.3 

§  31.  Gruel  and  unusual  punishment  in  forfeiture 
of  personal  liberty  and  rights  of  property.  —  In  pre- 
ceding sections 4  it  has  been  explained  how  far  the  consti- 
tutional prohibition  of  cruel  and  unusual  punishments 

U.  S.  377).  So,  also,  it  is  not  ex  post  facto  to  apply  to  a  crime,  previously 
committed,  a  constitutional  change  in  the  qualification  of  the  jurors; 
particularly,  where  the  crime  was  committed  after  the  adoption  of  the 
constitutional  provision,  and  before  the  legislature  had  passed  laws  to 
carry  the  constitutional  provision  into  effect.  Gibson  v.  State  of  Mis- 
Sissippi,  162  U.  S.  565;  Hoptw.  Utah,  110 U.  S.  574. 

1  Thus,  it  was  held  that,  where  a  State  statute  provided  for  the  reward 
of  good  behavior  of  the  convict  by  an  annual  reduction  of  the  term  of  con- 
finement, this  privilege  became  a  vested  right,  which  could  not  be  taken 
away  or  abridged  by  subsequent  legislation.    In  re  Canfield,  98  Mich.  644. 

2  In  re  Miller,  110  Mich.  676. 

8  Blackburn  -o.  State,  50  Ohio  St.  428;  Commonwealth  v.  Graves,  155 
Mass.  163 ;  Sturtevant  v.  Commonwealth,  158  Mass.  598. 
4  §§  11, 12a. 
§   31 


CRUEL  AND  UNUSUAL  PUNISHMENT.          93 

control  the  power  of  the  State  to  inflict  capital  and  cor- 
poral punishment.  Punishments,  which  do  not  restrict  or 
interfere  with  one's  right  of  personal  security,  must 
involve  the  deprivation  or  restriction  of  one's  personal  lib- 
erty or  right  of  property,  or  of  one's  civil  rights.  That  any 
one  of  these  rights  may  be  taken  away  or  restricted,  as  a 
punishment  for  crime,  seems  never  to  have  been  ques- 
tioned except  in  one  case,1  where  the  right  of  suffrage  and 
the  right  to  hold  office,  were  taken  away,  as  a  penalty  for 
gambling  in  violation  of  the  laws  of  the  State.  But  these 
were  held  not  to  be  cruel  and  unusual  punishments  in  the 
constitutional  sense. 

In  recent  decisions  this  constitutional  provision  has  been 
invoked  in  resistance  to  the  imposition  of  a  new  penalty 
for  crime ;  rather,  on  the  ground  that  the  penalty  was  exces- 
sive in  degree  when  the  character  of  the  offense  was  consid- 
ered, than  that  it  was  inherently  cruel  and  unusual.  In  all 
such  cases,  the  new  statute  increased  the  severity  of  the 
punishment,  and  in  all  of  them  the  courts  held  that  the  new 
penalties  were  not  excessive  or  cruel  in  the  constitutional 
sense.8  In  other  cases,  this  constitutional  provision  was 
appealed  to  as  making  a  statute  unconstitutional,  which 
applied  ordinary  punishments,  —  fines  and  imprisonment  — 
to  actions,  which  have  been  made  crimes  by  statute;  in  one 
case,  the  maintenance  of  a  common  nuisance,3  and  in 
another,  the  killing  of  wild  game  in  violation  of  the  regu- 
lations of  the  game  laws.4  The  courts  have  held  that  these 
were  not  cruel  and  unusual  punishments  in  the  constitutional 
sense. 

A  statute  has,  likewise,  been  held  to  be  lawful,  and  free 
from  constitutional  objection,  which  provided  that  the  re- 

1  Harper  v.  Commonwealth,  93  Ky.  290. 

1  State  v.  Reid,  106  N.  C.  714;  Ex  parte  Mitchell,  70  Cal.  1;  State  v. 
White,  44  Kan.  514;  People  v.  Morris,  80  Mich.  634. 
8  State  ».  Becker,  3  S.  D.  29. 
4  State  v.  De  Lano,  80  Wis.  259. 

§  31 


94  GOVERNMENT    CONTROL   OF   CRIMINAL    CLASSES. 

ceiver  of  stolen  goods  may  be  sentenced  to  the  State  peni- 
tentiary for  a  term  not  exceeding  five  years,  or  to  the 
county  jail  for  a  term  not  exceeding  six  months,  or  both. 
Double  punishment  is  not  cruel  or  unusual.1 

§  32.  Preliminary  confinement  to  answer  for  a  crime — 
Commitment  of  witnesses.  —  It  is  the  benign  principle  of 
every  system  of  jurisprudence  that  one  is  presumed  to  be 
innocent  of  all  criminal  accusations,  until  he  is  proven  to 
be  guilty,  and  that  presumption  is  so  strong  that  the 
burden  is  thrown  upon  the  prosecution  of  proving  the  guilt 
beyond  the  shadow  of  a  doubt,  in  order  to  secure  a  con- 
viction. But,  notwithstanding  this  general  presumption  of 
innocence,  the  successful  prosecution  and  punishment  of 
crimes  require  that  the  necessary  precautions  be  taken  to 
secure  the  presence  of  the  accused  during  the  trial  and 
afterwards,  in  case  of  conviction,  and  the  fear  of  a  default 
in  attendance  becomes  greater  in  porportion  as  the  likeli- 
hood of  conviction  increases.  In  order,  therefore,  that  the 
laws  may  be  enforced,  and  the  guilty  be  brought  to  trial 
and  punishment,  it  is  necessary  that  every  one,  against 
whom  a  charge  of  crime  has  been  laid,  should  submit  to 
arrest  by  the  proper  officer,  whose  duty  it  is  to  bring  the 
accused  before  the  court  or  officer  by  whom  the  order  for 
arrest  has  been  issued. 

Another  phase  of  preliminary  confinement,  which  is  per- 
mitted in  the  furtherance  of  justice,  is  the  commitment  of 
witnesses  in  criminal  cases.  When  a  witness  is  summoned 
in  a  criminal  case,  whether  to  appear  before  the  grand 
jury,  or  in  the  actual  trial  of  the  case,  and  he  refuses  to 
testify,  he  may  be  committed  to  jail  for  contempt,  unless 
he  is  exempted  by  privilege  from  the  obligation  to  testify.2 
So,  also,  where  it  is  feared  that  a  witness  is  likely  to  dis- 
appear before  the  trial,  in  order  to  escape  his  appearance 

i  People  v.  Perini,  94  Cal.  573. 
1  In  re  Clark,  65  Conn.  17. 
§    32 


PRELIMINARY  CONFINEMENT  TO  ANSWER  FOR  A  CRIME.   95 

on  the  witness  stand,  he  may  be  required  to  enter  into 
recognizance  and  give  bond  for  his  appearance;  and  if  he 
refuses  or  is  unable  to  do  so,  he  may  be  committed  to  jail. 
There  is  no  unconstitutional  interference  with  personal 
liberty  in  such  a  commitment.1 

Since  the  preliminary  confinement  is  ordered  only  to 
insure  the  attendance  of  the  accused  at  the  trial,  the  con- 
finement can  only  be  continued  as  long  as  there  is  any 
reasonable  danger  of  his  default.  Where,  therefore,  the 
punishment  upon  conviction  will  not  exceed  a  fine  or  im- 
prisonment of  short  duration,  it  became  customary  at  an 
early  day  to  release  him  upon  giving  a  bond  for  his 
appearance,  signed  by  sureties,  in  the  sum  which  he  will 
have  to  pay  upon  conviction,  or  in  such  a  sum  as  would 
probably  be  sufficient  to  outweigh  the  impulse  to  flee 
from  the  threatened  imprisonment.  This  was  called  giving 
bail.  At  common  law,  bail  could  not  be  demanded  as  a 
matter  of  right,  except  in  cases  of  misdemeanor,  and 
felonies  were  not  bailable  as  a  rule.  But  the  severity  of 
the  common  law  in  this  regard  has  been  greatly  moderated, 
until  at  the  present  day,  as  a  general  rule,  all  offenses  are 
bailable  as  a  matter  of  course,  except  in  cases  of  homicide 
and  other  capital  cases.  In  all  capital  cubes,  it  is  usually 
provided  that  bail  should  be  refused,  where  the  evidence 
of  guilt  is  strong  or  the  presumption  great,  and  in  all 
such  cases  it  is  left  to  the  discretion  of  the  judge  to 
whom  application  is  made,  whether  bail  should  be  granted 
or  refused.2  When  a  person  is  bailed,  he  is  released 
from  the  custody  of  the  State  authorities,  but  he  is  not 
remanded  completely  to  his  liberty.  The  one  who  has 
furnished  the  security,  and  is  therefore  responsible  for 

1  In  re  Petrie,  1  Kan.  App.  184  (40  P.  118). 

a  United  States  v.  Hamilton,  3  Dall.  17;  State  v.  Rockafellow,  6  N.  J. 
332;  Com.  v.  Semmes,  11  Leigh,  605;  State  v.  Summons,  19  Ohio,  139; 
Allery  v.  Com.,  8  B,  MOD.  3;  Moore  v.  State,  36  Miss.  137;  Foley  v.  People, 
1  111.  31;  Shore  v.  State,  6  Mo.  640;  People  v.  Smith,  1  Cal.  9. 

§    32 


96  GOVERNMENT   CONTROL   OF   CRIMINAL   CLASSES. 

his  default,  has  in  theory  the  custody  of  the  accused  in  the 
place  of  the  State,  and  he  has  in  fact  so  much  of  a  control 
over  the  accused,  that  he  may  re-arrest  the  latter,  whenever 
he  wishes  to  terminate  his  responsibility,  and  deliver  the 
principal  to  the  officers  of  the  law.  But  the  imprisonment 
by  the  bail  can  only  be  temporary  and  for  the  purpose  of 
returning  him  to  the  custody  of  the  law,  and  must  be  done 
with  as  little  violence  as  possible.  This  can  be  done  at  any 
time  before  the  forfeiture  of  the  bond  for  non-appearance 
has  been  judicially  declared ;  it  may  be  done  by  the  bail  or 
by  his  duly  constituted  agent,  and  the  arrest  can  be  made 
wherever  the  accused  can  be  found,  even  though  it  is  with- 
out the  State.1 

Another  instance,  where  bail  is  permitted  to  be  allowed, 
in  the  discretion  of  the  judge,  is  after  conviction  for  a 
crime,  which  is  not  punishable  by  death,  pending  an  ap- 
peal. But  the  circumstances,  and  conditions,  under  which 
bail  will  be  allowable  in  such  a  case,  are  wholly  within  the 
control  and  discretion  of  the  legislature ;  and  the  statute, 
regulating  the  same,  cannot  be  successfully  attacked,  on 
the  ground  of  unconstitutionality,  because  the  statute  per- 
mits bail  only  when  there  is  a  stay  of  proceedings,  and  a 
certificate  is  procured  from  a  judge  that  there  is  reasonable 
doubt,  whether  the  judgment  should  stand.2 

In  Pennsylvania,  a  statute  requires  bail  absolute  to  be 
given  for  a  debt  and  costs,  where,  in  a  suit  before  a  magis- 
trate for  the  recovery  of  wages  for  manual  labor,  an  ap- 
peal is  taken  from  the  judgment  in  favor  of  the  plaintiff. 
The  act  was  held  to  be  free  from  constitutional  objections.8 

The  constitutions  of  most  of  the  States,  as  well  as  the 

1  See  Commonwealth  v.  Brickett,  8  Pick.  138;  Parker  v.  Bidwell,  3 
Conn.  84;  Reed  v.  Case,  4  Conn.  166(10  Am.  Dec.  110);  Niccolls  v.  In- 
gersoll,  7  Johns.  145;  Harp  v.  Osgood,  2  Hill,  216. 

2  McKane  v.  Durston,  153  U.  S.  684. 

8  Foster  v.  Strayer  (Com.  pi.),  6  Pa.  Dist.  Rep.  333;  27  PIttsb.  Leg. 
J.  (N.  s.)  390. 

§   32 


WHAT   CONSTITUTES   A   LAWFUL   ARREST.  97 

constitution  of  the  United  States,  provide  that  excessive 
bail  shall  not  be  required.  What  constitutes  excessive  bail, 
must  from  the  necessities  of  the  case  be  left  with  the  dis- 
cretion of  the  judge  or  magistrate,  to  whom  application 
for  release  on  bail  is  made.  Any  niisjudgment  in  such  a 
case,  or  a  willful  requirement  of  excessive  bail,  could  not 
be  remedied,  except  by  application  to  some  other  court  or 
judge  possessing  jurisdiction  over  the  case.  That  bail  may 
be  called  reasonable,  which  will  be  sufficient  to  secure  the 
attendance  of  the  accused  at  the  trial  by  outweighing  or 
overcoming  the  inducement  to  avoid  punishment  by  a  de- 
fault ;  and  the  court  or  judge,  in  determining  the  amount 
of  the  bail,  must  take  into  consideration  all  the  circum- 
stances which  will  increase  or  diminish  the  probability  of  a 
default,  the  nature  of  the  offense,  and  of  the  punishment, 
the  strength  or  weakness  of  the  evidence,  the  wealth  or 
impecuniosity  of  the  accused,  etc. 


SECTION  33.  What  constitutes  a  lawful  arrest. 
34.  Arrests  without  a  warrant. 

§  33.  What  constitutes  a  lawful  arrest.  —  As  a  general 
proposition,  no  one  can  make  a  lawful  arrest  for  a  crime, 
except  an  officer  who  has  a  warrant  issued  by  a  court  or 
magistrate  having  the  competent  authority.  If  the  process 
is  fair  on  its  face,  that  is,  nothing  appears  upon  its  face  to 
lead  the  officer  to  an  inquiry  into  the  jurisdiction  of  the 
court,  then  the  officer  who  makes  the  arrest  has  acted  law-, 
fully,  notwithstanding  the  court  or  magistrate  which  issued 
the  process  had  no  jurisdiction  over  the  case.1 

1  Cooley  on  Torts,  172,  173,  460.  See  State  v.  McNally,  34  Me.  210; 
State  v.  Weed,  21  N.  H.  262;  Underwood  v.  Robinson,  106  Mass.  296; 
Neth  v.  Crofut,  30  Conn.  580;  Warners.  Shed,  10  Johns.  138;  Brainard 
v.  Head,  15  La.  Ann.  489.  See,  also,  generally,  as  to  what  process  is  fair 
on  its  face:  Erskine  v.  Hohnbach,  14  Wall.  613;  Watson  v.  Watson,  9 
Conn.  140;  Tremont  v.  Clarke,  33  Me.  482;  Colman  v.  Anderson,  10  Mass. 

7  §  33 


98  GOVERNMENT    CONTROL    OF    CRIMINAL    CLASSES. 

A  distinction  is  made  by  the  cases  between  courts  of  gen- 
eral and  of  inferior  jurisdiction,  in  respect  to  what  process 
is  fair  on  its  face.  If  the  process  issued  from  a  court  of 
general  jurisdiction,  the  officer  is  allowed  to  indulge  in  the 
presumption  that  the  case  came  within  the  jurisdiction  of 
the  court,  and  need  make  no  inquiry  into  the  details  of  the 
case,  nor  need  the  warrant  contain  recitals  to  show  that 
the  court  had  jurisdiction.  But  if  the  process  issued  from 
a  magistrate  or  court  of  inferior  and  limited  jurisdiction, 
the  warrant  must  contain  sufficient  recitals  to  satisfy  the 
officer  that  the  case  was  within  the  jurisdiction  of  the  court, 
in  order  to  be  fair  on  its  face.  This  distinction  is  very 
generally  recognized  and  applied.1 

The  question  has  been  raised,  whether  an  arrest,  made, 
under  a  warrant  lawfully  issued  by  a  State  court  or  magis- 
trate, is  made  unlawful,  as  not  being  due  process  of  law, 
by  the  fact  that  the  person  arrested  has  been  unlawfully 
brought  by  private  persons  within  the  jurisdiction  of  the 
court.  It  has  been  held  that  the  two  occurrences  are 
distinct  and  separate,  and  that  the  arrest  under  a  State 
warrant  was  "  due  process  of  law."  2 

The  officer  is  bound  to  know  whether  under  the  law  the 

105;  Howard  v.  Proctor,  7  Gray,  128;  Williamston  v.  Willis,  15  Gray, 
427;  Rice  v.  Wadsworth,  27  N.  H.  104;  Sheldon  v.  Van  Buskirk,  2  N.  Y. 
473;  Alexander  ».  Hoyt,  7  Wend.  89;  Webber  v.  Gay,  24  Wend.  485; 
Chegaray  v.  Jenkins,  5  N.  Y.  376;  Moore  v.  Alleghany  City,  18  Pa.  St.  55; 
Billings  v.  Russell,  23  Pa.  St.  189;  Cunningham  v.  Mitchell,  67  Pa.  St. 
78;  State  v.  Jervey,  4  Strob.  304;  State  v.  Lutz,  65  N.  C.  503;  Gore  v. 
Martin,  66  N.  C.  371;  Bird  v.  Perkins,  33  Mich.  28;  Loomis  v.  Spencer, 
1  Ohio  St.  153;  Noland  v.  Busby,  28  Ind.  154;  Lott  v,  Hubbard,  44  Ala. 
693;  Brother  v.  Cannon,  2  111.  200;  Shaw  v.  Dennis,  10  111.  405;  McLean 
v.  Cook,  23  Wis.  364;  Orr  v.  Box,  22  Minn.  485;  Turner  v.  Franklin,  29 
Mo.  285;  State  v.  Duelle,  48  Mo.  282;  Walden  v.  Dudley,  49  Mo.  419. 
The  officer  cannot  receive  the  warrant  signed  in  blank  by  the  judge  or 
magistrate,  and  fill  up  the  blanks  himself.  Such  a  warrant  would  be 
void.  Pierce  ».  Hubbard,  10  Johns.  405;  People  v.  Smith,  20  Johns.  63; 
Rafferty  v.  People,  69  111.  Ill;  ».  c.  72  111.  37  (18  Am.  Rep.  601). 

1  Cooley  on  Torts,  pp.  173,  464. 

2  In  re  Mahon,  34  Fed.  525. 

$    33 


ARREST  WITHOUT  WARRANT.  99 

warrant  is  defective,  and  not  fair  on  its  face,  and  he  is  lia- 
ble as  a  trespasser,  if  it  does  not  appear  on  its  face  to  be  a 
lawful  warrant.  His  ignorance  is  no  excuse.1  It  has  been 
held  in  several  of  the  States2  that  where  an  officer  has  knowl- 
edge of  the  illegality  of  the  warrant,  although  it  is  fair 
on  its  face,  he  can  not  with  safety  act  under  it,  the  protec- 
tion of  process  fair  on  its  face  being  granted  to  those  who 
ignorantly  rely  upon  its  apparent  validity.  But  the  better 
opinion  is  that  the  officer  is  not  required  in  any  case  to  pass 
judgment  upon  the  validity  of  a  warrant  that  is  fair  on  its 
face,  and  his  knowledge  of  extra-judicial  facts  will  not 
deprive  him  0f  the  right  to  rely  upon  its  apparent  validity.3 

§  34.  Arrests  without  a  warrant. — Although  it  is  the 
general  rule  of  law  that  there  can  be  no  arrest  without  a 
warrant  of  the  nature  just  described,  yet  there  are  cases  in 
which  the  Requirement  of  a  warrant  would  so  obstruct  the 
effectual  enforcement  of  the  laws,  that  the  ends  of  justice 
would  be  defeated.  For  public  reasons,  therefore,  in  a  few 
cases,  the  personal  security  of  the  citizen  is  subjected  to 

1  Grumon  v.  Baymond,  1  Conn.  39;  Lewis  v.  Avery,  8  Vt.  287;  Clay- 
ton v.  Scott,  45  Vt.  386.     But  where  the  matter  of  jurisdiction  is  a  ques- 
tion of  fact  and  .not  a  question  of  law,  upon  which  the  court  issuing  the 
warrant  has  pronounced  judgment,  the  officer  is  protected  by  the  warrant, 
and  is  not  responsible  for  any  error  of  the  court.     Clarke  v.  May,  2  Gray, 
410;  Mather  u.   Hood,  8  Johns.  447;  Sheldon  v.  Wright,  5  N.  Y.  497; 
State  v.  Scott,  1  Bailey,  294;  Wall  v.  Trumbull,  16  Mich.  228. 

2  Barnes  v.  Barber,  6  111.  401 ;  Guyer  v.  Andrews,  11  111.  494;  Leachman 
v.  Dougherty,  81  III.  324;  Sprague  v.  Birchard,  1  Wis.  457,  464;  Grace 
v.  Mitchell,  31  Wis.  533,  539. 

3  Wilmfcrth    v.    Burt,  7  Met.  267;    Twitchell  v.  Shaw,  10  Cush.  46; 
Grumon  v.  Raymond,  1  Conn.  40;  Watson  v.  Watson,  9  Conn.  140,  146; 
Webber  v.  Gay,  24  Wend.  485;  Cunningham  v.  Mitchell,  67  Pa.  St.  78; 
Wall  v.  Trumbull,  16  Mich.  228;  Bird  v.  Perkins,  33  Mich.  28;  Brainard 
v.  Head,  15  La.  Ann.  489;  Richards  t?.Nye,  5  Ore.  382.     But  he  may,  if  he 
chooses,  refuse  to  serve  such  a  warrant,  and  waive  the  protection  which 
he  may  claim  from  its  being  fair  on  its  face.    Horton  v.  Hendershot,  1 
Hill,  118;  Cornell  v.  Barnes,  7  Hill,  35;  Dunlap  v.  Hunting,  2  Denio, 
643;  Earl  v.  Camp,  16  Wend.  562.     See  Davis  v.  Wilson,  61  111.  527;  Hill 
v.  Wait,  5  Vt.  124. 

§    34 


100         GOVEENMENT   CONTROL   OF   CRIMINAL   CLASSES. 

the  further  liability  of  being  arrested  by  a  police  officer  or 
private  individual  without  a  warrant.  But  the  right  thus 
to  arrest  without  a  warrant  must  be  confined  to  the  cases 
of  strict  public  necessity.  The  cases  are  few  in  number 
and  may  be  stated  as  follows  :  — 

1.  When  a  felony  is  being  committed,  an  arrest  may  be 
made  without  warrant  to  prevent  any  further  violation  of 
the  law.1 

2.  When  the  felony  has  been  committed,  and  the  officer 
or  private  individual  is  justified,  by   the  facts   within   his 
knowledge,  in  believing  that  the  person  arrested  has  com- 
mitted the  crime.2 

3.  All  breaches  of  the  peace,  in  assaults  and  batteries, 
affrays,   riots,  etc.,    for    the  purpose  of  restoring  order 
immediately.3 

4.  The  arrest  of  all  disorderly  and   other  persons  who 
may  be  violating  the   ordinary  police  regulations  for  the 
preservation  of  public  order  and  health,  such  as    vagrants, 
gamblers,  beggars,  who  are  found  violating  the  laws  in  the 
public  thoroughfares.4 

1  Ruloff  v.  People,  45  N.  Y.  213;  Keenan  v.  State,  8  Wis.  132.    But  see 
Somerville  v.  Richards,  37  Mich.  299. 

2  But  the  belief  must  be  a  reasonable  one.     If  the  facts  within  his 
knowledge  do  not  warrant  his  belief  in  the  guilt  of  the  innocent  person 
whom  he  has  arrested,  he  will  be  liable  in  an  action  for  false  imprison, 
ment.     State  v.  Holmes,  48  N.  H.  377;  Holly  v.  Mix,  3  Wend.  350;  Reuck 
v.  McGregor,  32  N.  J.  70;  Commonwealth  v.  Deacon,  8  Serg.   &  R.  47; 
State  v.  Roane,  2  Dev.  68;  Long  v.  State,  12  Ga.  233;  Earaes  v.  State,  6 
Humph.  53.    Less  particularity,  in  respect  to  the  reasonableness  of  the 
suspicions  against  an  individual,  is  required  of  an  officer  who  makes  an 
arrest  without  warrant,  than  of  a  private  person.    The  suspicions  must 
be  altogether  groundless,  in  order  to  make  the  officer  liable  for  the  wrong- 
ful arrest.     See  Marsh  v.    Loader,  14  C.  B.    (N.  8.)  535;  Lawrence  v. 
Hedger,  3  Taunt.  14;  Rohan  v.  Sawin,  5  Gush.  281;  Holley  v.  Mix,  3 
Wend.  350;  Burns  v.  Erben,  40  N.  Y.  463;  Dreunan  v.  People,  10  Mich. 
169. 

3  Philips  v.  Trull,  HJohns.  477;  Respublica  v.  Montgomery,  1  Yeates, 
419;  City  Council  v.  Payne,  2  Nott  &  McCord,  475;  Vandeveer  v.  Mat- 
tocks, 3  Ind.  479. 

4  See  Mitchell  v.  Lemon,  34  Md.  176,  in  which  it  was  held  that  one 

<    34 


THE  TRIAL  OF  THE  ACCUSED.  101 

The  constitutional  principle,  that  arrest  without  warrant 
is  permissible  only  in  cases  of  strict  public  necessity,  is  very 
clearly  set  forth  in  a  case  from  the  Michigan  courts,  which 
pronounces  a  statute  of  that  State  unconstitutional,  in  that 
it  authorizes  the  recaption  without  warrant  and  imprison- 
ment of  a  convict,  who  is  charged  with  the  violation  of  the 
conditions  of  his  pardon.  No  public  necessity  required 
this  summary  arrest  without  warrant ;  and,  consequently, 
his  deprivation  of  liberty  had  not  been  procured  by  "due 
process  of  law."  l 


SECTION  35.  The  trial  of  the  accused. 

36.  Trial  must  be  speedy. 

37.  Trial  must  be  public. 

38.  Accused  entitled  to  counsel. 

39.  Indictment  by  grand  jury  or  by  information. 

40.  The  plea  of  defendant. 

41.  Trial  by  jury  —  Legal  jeopardy. 

§  35.  The  trial  of  the  accused. — "No  man  shall  be 
deprived  of  his  life,  liberty,  or  property  except  by  the  judg- 
ment of  his  peers  or  the  law  of  the  land."  One  who  has 
committed  a  crime  can  be  punished  by  man,  not  because 
he  has  violated  the  law  of  God,  or  the  law  of  nature  (if  the 
two  systems  of  law  can  be  considered  distinguishable),  but 
because  he  has  broken  the  law  of  man.  In  order  that  a 
man  may  be  lawfully  deprived  of  his  life  or  liberty,  he 
must  be  convicted  of  a  breach  of  the  human  laws,  and  the 

may  be  arrested  without  a  warrant,  who  was  found  violating  the  rules 
laid  down  by  the  city  board  of  health  for  the  preservation  of  the 
public  health.  In  Burroughs  v.  Eastman,  101  Mich.  419,  it  was  held 
that  an  ordinance  did  not  contravene  the  constitutional  requirement  of 
"  due  process  of  law,"  which  authorized  police  officers  to  arrest  with- 
out warrant  persons  who  were  violating  any  of  the  ordinances  in  their 
presence,  even  in  those  cases  in  which  the  offense  committed  did  not 
amount  to  a  breach  of  the  peace.  But  see  contra,  State  v.  Hunter,  10S 
N.  C.  796. 

1  People  v.  Moore,  62  Mich.  496. 

§    35 


102         GOVERNMENT   CONTROL   OF   CRIMINAL   CLASSES. 

conviction  must  be  secured  according  to  the  provisions  of 
these  laws.  If,  according  to  the  existing  rules  of  the  sub- 
stantial and  remedial  law,  one  charged  with  a  crime  is  not 
guilty  or  cannot  be  convicted  of  it,  he  stands  free  before 
the  law  notwithstanding  he  has  violated  the  God-given  rights 
of  others;  and  to  take  away  his  life  or  his  liberty  would  be 
as  much  an  infringement  of  his  constitutional  rights,  as 
would  a  like  deprivation  be  of  a  man  who  leads  a  strictly 
moral  life,  and  scrupulously  respects  the  natural  rights  of 
his  fellow-men.  A  man's  life,  liberty,  or  property  cannot 
be  taken  away,  except  by  due  process  of  law.  It  is  not 
proposed  to  explain  all  the  rules  of  law  governing  the  con- 
duct and  management  of  criminal  prosecutions,  since  the 
object  of  the  present  outline  of  the  subject  is  simply  to 
make  a  statement  of  the  leading  constitutional  protections 
to  personal  liberty.  The  trial  must  be  conducted  in  com- 
plete accordance  with  the  rules  of  practice  and  the  law  of 
evidence,  in  order  that  a  conviction  may  lawfully  support  an 
imprisonment  for  crime.  But  these  rules  of  practice  and 
pleading  may  be  changed  by  the  legislature  to  any  extent, 
provided  the  constitutional  limitations  to  be  presently  men- 
tioned are  not  violated. 

As  already  explained,  a  temporary  confinement  of  one 
accused  of  crime  is  permissible,  in  fact  necessary,  for  the 
purpose  of  insuring  the  presence  of  the  alleged  criminal 
at  the  trial ;  for  in  cases  of  felony  no  one  can  be  tried  and 
convicted  in  his  absence,  even  though  his  absence  is  volun- 
tary.1 But  this  confinement  is  only  temporary,  and  can 
justifiably  continue  only  for  as  long  a  time  as  is  reasonably 

1  Winchell  v.  State,  7  Cow.  525;  Maurer  v.  People,  43  N.  Y.  1; 
Jacobs  v.  Cone,  5  Serg.  &  R.  335;  State  v.  Alman,  64  N.  C.  364;  Andrews 
o.  State,  2  Sneed,  550;  Jackson  ».  Commonwealth,  19  Gratt.  656.  In  cap- 
ital cases,  the  record  must  show  affirmatively  that  the  accused  was  pres- 
ent throughout  the  trial,  and  particularly  when  the  verdict  is  brought  in 
and  sentence  pronounced.  Dougherty  v.  Commonwealth,  69  Pa.  St.  286. 
But  it  seems  that  the  accused  need  not  always  be  personally  present  at 
the  trial  for  misdemeanors.  Cooley  Const.  Lim.  390. 
§  35 


THE    TRIAL    MUST    BE    SPEEDY.  103 

required  by  the  prosecuting  attorney  to  prepare  the  case  of 
the  State  for  trial. 

§  36.  The  trial  must  be  speedy.  — It  is,  therefore,  one  of 
the  constitutional  limitations  for  the  protection  of  personal 
liberty,  that  the  trial  be  speedy.  A  man  accused  of  a  crime 
is  entitled  to  a  speedy  trial,  not  merely  because  he  is  tinder 
a  personal  restraint,  but  also  because  his  reputation  is  under 
a  cloud,  as  long  as  the  criminal  accusation  remains  undis- 
posed of.  Asa  general  proposition,  the  accused  is  entitled  to 
a  trial  at  the  next  term  of  the  court  after  the  commission  of 
the  crime,  or  after  the  accused  has  been  apprehended  ;  and 
if  it  should  prove  to  be  necessary  for  any  cause,  except  the 
fault  of  the  accused,  to  adjourn  the  court  without  bringing 
the  prisoner  to  trial,  in  ordinary  cases  he  would  then  be  en- 
titled to  bail,  although  originally  he  was  not.  This  is,  how- 
ever, largely  a  matter  of  discretion  for  the  court.1  When 
the  prisoner  is  ready  for  trial,  the  solicitor  for  the  State  is 
not  entitled  to  delay,  unless  he  satisfies  the  court  that  he 
has  exercised  due  diligence,  yet,  for  some  cause,  the  short- 
ness of  time  or  the  absence  of  material  witnesses,  etc.,  he 
is  not  prepared  to  proceed  to  trial.2  The  continuance  of 
cases  must  necessarily  be  largely  left  to  the  discretion  and 
good  faith  of  the  prosecuting  attorney,  although  it  is  the 
duty  of  the  court  to  be  watchful  in  behalf  of  the  prisoners, 
who  may  through  the  carelessness  or  malice  of  the  attorney 
for  the  State  be  kept  in  prison  indefinitely  awaiting  a  trial. 
The  discretionary  character  of  the  duties  of  prosecuting 
attorneys  furnishes  them  with  powerful  means  of  oppres- 

1  See  Ex  parte  Caplis,  58  Miss.  358,  and  State  v.  Hodgson,  66  Vt.  134. 
In  the  latter  case  it  would  seem  that  a  law,  which  took  away  or  materially 
reduced  the  discretion  of  the  court  in  granting  continuances  or  entering 
a  nolle  prosequi,  would  be  unconstitutional.    The  provisions  of  the  stat- 
ute in  question  were  designed  to  prevent  continuances  for  the  purpose  of 
delay,  and  to  insure  a  speedy  trial;  but  the  court  held  that  they  did  not 
invade  the  province  of  the  court. 

2  Cooley  Const.  Lim.  311,  312. 

§   36 


104         GOVERNMENT   CONTROL   OF    CRIMINAL    CLASSES. 

sion,  if  they  choose  to  employ  them,  and  they  are  too  often 
careless  and  indifferent  to  the  suffering  they  cause  to  the 
accused,  and  too  frequently  ignore  his  legal  right  to  a 
speedy  trial.1 

§  37.  Trials  must  be  public.  —  The  next  constitutional 
requirement  is  that  the  trial  must  be  public.  The  object  of 
this  provision  is  to  prevent  the  establishment  of  secret  tribu- 
nals of  justice,  which  can  be  made  effective  instruments  for 
the  oppression  of  the  people.  But  there  is  a  difficulty  in  de- 
termining what  amount  of  publicity  in  criminal  trials  would 
satisfy  this  requirement  of  the  constitution.  It  would  not 
do  to  say  that  every  person  has  a  constitutional  right  to  at- 
tend every  criminal  trial,  whether  he  had  an  interest  in  the 
prosecution  or  not,  for  that  would  necessitate  the  con- 
struction for  judicial  purposes  of  a  much  larger  building 
than  is  really  needed  for  the  ordinary  conduct  of  the 
courts.  Then,  too,  since  this  constitutional  requirement 
was  established  for  the  protection  of  the  accused,  it 
would  not  be  violating  any  rights  of  his,  if  the  courts 
should  be  closed,  in  the  trial  of  causes  in  which  great 
moral  turpitude  is  displayed,  to  those  who  are  drawn 
thither  by  no  real  interest  in  the  prosecution  or  the  ac- 
cused, or  for  the  performance  of  a  public  duty,  but 
merely  for  the  gratification  of  a  prurient  curiosity.  The 
admission  of  such  persons  may  justly  be  considered  in- 
jurious to  the  public  morals,  and  not  at  all  required  as 
a  protection  against  the  oppression  of  star  chambers. 
But,  while  it  is  undoubtedly  true  that  this  constitutional 
requirement  could  be  satisfied,  notwithstanding  the  public 
generally  is  excluded  from  attendance  upon  trials,  where 

1  While  I  am  writing,  an  account  of  a  most  flagrant  case  of  official 
disrespect  of  private  rights  of  this  character  has  come  to  my  ears.  In 
my  neighborhood  a  man  has  been  allowed  to  linger  in  jail  on  the  charge 
of  burglary,  for  many  days,  awaiting  his  preliminary  examination,  be- 
cause the  prosecuting  attorney  was  in  attendance  upon  political  picnics. 
§  37 


TRIALS   MUST   BE   PUBLIC.  105 

on  account  of  the  nature  of  the  case  public  morals  would 
likely  be  corrupted  by  an  unnecessary  exposure  of  human 
depravity,  still  it  must  be  conceded  that  the  present  public 
sentiment  in  America  is  opposed  to  any  exclusion  of  the 
public  from  attendance  upon  the  sessions  of  the  criminal 
courts,  and  an  attempt  of  that  kind,  even  if  the  court  pos- 
sessed the  power  under  the  constitution  and  laws,  and  that 
seems  questionable,  would  raise  a  most  dangerous  storm 
of  public  indignation  against  the  offending  judge.  It 
is  only  through  the  action  of  the  legislature  that  it  would 
be  possible  to  impose  effectively  the  limitations  proposed. 
In  framing  these  limitations,  numerous  difficulties  would 
present  themselves;  and  it  would  finally  be  ascertained 
that  but  two  methods  were  feasible,  viz.:  either  to 
leave  it  to  the  discretion  of  the  court  who  shall  be 
admitted  to  witness  the  trial,  or  to  exclude  the  public 
altogether,  and  admit  only  the  officers  of  the  court,  in- 
cluding members  of  the  bar  and  jurors,  the  parties  to  the 
suit,  witnesses,  and  others  who  are  personally  interested 
in  the  accused  or  the  subject  of  the  suit,  and  those  whose 
presence  is  requested  by  the  parties  to  the  cause.  Such  is 
believed  to  be  the  law  prevailing  in  Germany.1  Such  a 
provision  would  seem  to  make  the  trial  sufficiently  public 
in  order  to  protect  the  individual  against  unjust  and  tyran- 
nical prosecutions,  and  likewise  furnish  the  community 
with  abundant  means  for  enforcing  a  proper  administration 
of  the  courts. 

In  the  bame  connection,  it  would  be  well,  in  carrying  out 
the  same  object,  to  exclude  the  reporters  of  the  ordinary 
newspapers.  While,  as  a  matter  of  course,  the  preserva- 

1  The  writer  remembers  how,  on  one  occasion,  while  he  was  a  student 
of  the  law  at  the  University  of  Gottingen,  he  was  bidden  to  leave  the 
crimiual  court,  because  the  case  about  to  be  tried  was  one  involving  deep 
moral  turpitude.  This  has  now  become  a  rather  common  practice  in 
this  country;  especially  in  large  cities  like  New  York,  in  order  to  exclude 
minors  and  women,  who  are  drawn  thither  by  a  prurient  curiosity. 

§  37 


106         GOVERNMENT    CONTROL    OF    CRIMINAL    CLASSES. 

tion  and  publication  of  criminal  trials  and  statistics  are 
necessary  to  the  public  good,  it  is  not  only  unnecessary  as 
a  protection  of  personal  liberty,  that  they  should  appear 
in  the  ordinary  public  print,  but  it  is  highly  injurious  to 
the  public  morals,  as  well  as  revolting  to  the  sensibilities  of 
any  one  possessing  a  fair  degree  of  refinement.  The  most 
enterprising  of  the  American  journals  of  the  larger  cities 
present  daily  to  their  reading  public  a  full  history  of  the 
criminal  doings  of  the  previous  day,  and  the  length  of  the 
reports  increases  with  the  nastiness  of  the  details.  The 
amount  of  moral  filth,  that  is  published  in  the  form  of 
reports  of  judicial  proceedings,  renders  the  daily  paper  un- 
fit to  be  brought  into  a  household  of  youths  and  maidens. 
There  is  greater  danger  of  the  corruption  of  the  public 
morals  through  the  publication  of  the  proceedings  of  our 
criminal  courts,  than  through  the  permission  of  attendance 
upon  the  sessions  of  the  court.  Only  a  few  will  or  can 
avail  themselves  of  that  privilege,  whereas  thousands  get 
to  learn  through  the  press  of  the  disgusting  details  of  crime. 

§  38.  Accused  entitled  to  counsel.  — The  State,  in  all 
criminal  prosecutions,  is  represented  by  a  solicitor,  learned 
in  the  law,  and  unless  the  accused  was  likewise  represented 
by  legal  counsel,  he  would  usually  be  at  the  mercy  of  the 
court  and  of  the  prosecuting  attorney.  The  prosecution 
might  very  easily  be  converted  into  a  persecution.  It  was 
one  of  the  most  horrible  features  of  the  early  common  law 
of  England,  that  persons  accused  of  felonies  were  denied 
the  right  of  counsel,  the  very  cases  in  which  the  aid  of 
counsel  was  most  needed ;  and  it  was  not  until  the  present 
century  that  in  England  the  right  of  counsel  was  guaranteed 
to  all  persons  charged  with  crime.1  But  in  America  the 

1  In  1836,  by  Stat.  6  and  7  Will.  IV.,  ch.  114.    Before  this  date,  English 

jurists  indulged  in  the  pleasing  fiction  that  the  judge  will  be  counsel 

for  the  prisoner.    tf  It  has  been  truly  said  that,  in  criminal  cases,  judges 

were  counsel  for  the  prisoners.     So,  undoubtedly,  they  were,  as  far  as 

§   38 


ACCUSED   ENTITLED   TO   COUNSEL.  107 

constitutional  guaranty  of  the  right  of  counsel  in  all  cases, 
both  criminal  and  civil,  is  universal,  and  this  has  been  the 
practice  back  to  an  early  day.  Not  only  is  it  provided  that 
prisoners  are  entitled  to  counsel  of  their  own  appointment, 
but  it  is  now  within  the  power  of  any  judge  of  a  criminal 
court,  and  in  most  States  it  is  held  to  be  his  imperative 
duty,  to  appoint  counsel  to  defend  those  who  are  too  poor 
to  employ  counsel;  and  no  attorney  can  refuse  to  act  in 
that  capacity,  although  he  may  be  excused  by  the  court  on 
the  presentation  of  sufficient  reasons.1 

On  the  continent  of  Europe,  the  prisoner  is  allowed  the 
aid  of  counsel  during  the  trial,  but  until  the  prosecuting 
attorney  is  through  with  his  inquisitorial  investigation  of 
the  prisoner,  and  has,  by  alternately  threatening,  coaxing, 
and  entrapping  the  accused  into  damaging  admissions,  pro- 
cured all  the  attainable  evidence  for  the  State,  he  is  denied 
the  privilege  of  counsel.  The  counsel  gains  access  to  his 
client  when  the  prosecuting  attorney  is  satisfied  that  he  can 
get  nothing  more  out  of  the  poor  prisoner,  who  finding  him- 
self perhaps  for  the  first  time  in  the  clutches  of  the  law, 
and  unable  to  act  or  to  speak  rationally  of  the  charge 
against  him,  will  make  his  innocence  appear  to  be  a  crime. 
Not  so  with  the  English  and  American  law.  From  the  very 
apprehension  of  the  prisoner,  he  is  entitled  to  the  aid  of 
counsel,  and  while  his  admissions,  freely  and  voluntarily 
made,  are  proper  evidence  to  establish  the  charge  against 
him,  it  is  made  the  duty  of  all  the  officers  of  the  law,  with 

they  could  be,  to  prevent  undue  prejudice,  to  guard  against  improper  In- 
fluence being  excited  against  prisoners ;  but  it  was  impossible  for  them 
to  go  further  than  this,  for  they  could  not  suggest  the  course  of  defense 
prisoners  ought  to  pursue;  for  Judges  only  saw  the  deposition  so  short 
a  time  before  the  accused  appeared  at  the  bar  of  their  country,  that  it 
was  quite  impossible  for  them  to  act  fully  in  that  capacity."  Baron 
Garrow  in  a  charge  to  a  grand  jury,  quoted  in  Cooley  Const.  Lira.  *332, 
n.  2. 

1  Wayne  Co.  v.  Waller,  60  Pa.  St.  99  (35  Am.  Rep.  636);  Bacon  v. 
Wayne  Co.,  1  Mich.  461 ;  Vise  v.  Hamilton  Co.,  19  111.  18. 

§    38 


108         GOVERNMENT    CONTROL    OF   CRIMINAL    CLASSES. 

whom  he  may  come  into  contact,  to  inform  him  that  he 
need  not  under  any  circumstances  say  anything  that  might 
criminate  him.  Confessions  of  the  accused,  procured  by 
promises  or  threats,  are  not  legal  testimony,  and  cannot  be 
introduced  in  support  of  the  case  for  the  State.1 

§  39.  Indictment  by  grand  jury  or  by  information.  — 

The  prevailing  criminal  procedure,  throughout  the  United 
States,  with  perhaps  a  few  exceptions,  provides  in  cases  of 
felony  for  accusations  to  be  made  by  an  indictment  by  a 
grand  jury.2  But  these  are  matters  of  criminal  procedure 
that  are  subject  to  constant  change  by  the  legislature,  and 
it  cannot  be  doubted  that  no  constitutional  limitation  would 
be  violated,  if  the  grand  jury  system  were  abolished.8  So, 
also,  the  form  of  the  indictment  may  be  very  minutely 
regulated  by  statute,  without  infringing  any  constitutional 
provision.4 

1  Commonwealth  v.  Taylor,  5  Gush.  605;  Commonwealth  v.  Curtis,  97 
Mass.  574;  Commonwealths.  Sturtivant,  117  Mass.  122;   Commonwealth 
v.  Mitchell,  117  Mass.  431;  People  v.  Phillips,  42  N.  Y.  200;  People  v. 
McMahon,  15  N.  Y.  385;  State  v.  Guild,  10  N.  J.  163  (18  Am.  Dec.  404)  ; 
Commonwealth  v.  Harman,  4  Pa.  St.  269;  State  v.  Bos  tick,  4  Harr.  563; 
Thompson  v.  Commonwealth,  20  Gratt.  724;  State  v,  Roberts,   1  Dev. 
259;  State  v.  Lowhorne,  66  N.  C.  538;  States.  Vaigneur,  5  Rich.  391; 
Frain  v.  State,  40  Ga.  529;  State  v.  Garvey,  28  La.  Ann.  955  (26  Am. 
Rep.  123);  Boyd  v.  State,  2  Humph.  655;  Morehead  v.  State,  9  Humph. 
635;  Austine  v.  State,  51  111.  236;  State  v.  Brockman,  46  Mo.  566;  State 
v.  Staley,  14  Minn.  105. 

2  In  some  of  the  States  all  accusations  are  now  made  by  informa- 
tion filed  by  the  prosecuting  attorney,  and  probably  in  all  of  the  States 
prosecutions  for  minor  misdemeanors  are  begun  by  information. 

3  Kallock  v.  Superior  Court, 56  Cal,229.     Stater?.  Sureties  of  Krohne 
(Wyo.),  34  P.  3;  In  re  Boulter  (Wyo.),  40  P.  520;  State  v.  Bates  (Utah), 
47  P.  78;  States.  Carrington  (Utah),  50  P.  526;  Hurtado  v.  People  of 
California,  110  U.  S.  516;  McNulty  v.  People  of  California,  149  U.  S.  645; 
Vincent  v.  People  of  California,  149  U.  S.  648.    But  the  United  States 
Constitution  requires  indictment  by  grand  jury  in  those  cases  in  which 
it  was  required  at  common  law.     See  United  States  Const.,  Amend.,  art, 
V.;  Eilenbecker  ».  Dist.  Court,  134  U.  S.  81. 

4  In  re  Krug,  79  Fed.  308. 

§    39 


THE   PLEA    OF   DEFENDANT.  109 

§  40.  The  plea  of  defendant.  —  According  to  the  early 
common  law,  it  was  thought  that  before  the  trial  could 
proceed,  the  defendant  had  to  plead  to  the  indictment.  In 
treason,  petit  felony,  and  misdemeanors,  a  refusal  to  plead 
or  standing  mute,  was  equivalent  to  a  plea  of  guilty  and 
the  sentence  was  pronounced  as  if  the  prisoner  had  been 
regularly  convicted.  But  in  all  other  cases,  it  was  neces- 
sary to  have  a  plea  entered,  before  judgment  could  be  pro- 
nounced; and  unless  the  defendant  could  be  compelled  to 
plead,  the  prosecution  would  fail.  It  was  the  custom  in 
such  cases  to  resort  to  tortures  of  the  most  horrible  kind  in 
order  to  compel  the  defendant  to  plead ;  and  where  the  re- 
fusal was  shown  to  be  through  obstinacy  or  a  design  to  frus- 
trate the  ends  of  justice,  and  not  because  of  some  physical 
or  mental  infirmity  (and  these  matters  were  determined  by 
a  jury  summoned  for  that  purpose),  the  court  would  pro- 
nounce the  terrible  sentence  of  " peine  forte  et  dure."  1 
But  at  the  present  day  the  necessity  of  a  voluntary  plea  to 
the  indictment  does  not  seem  to  be  considered  so  pressing, 
as  to  require  the  application  of  this  horrible  penalty. 
Respect  for  the  common  law  requirement  is  manifested 
only  by  the  court  ordering  the  plea  of  not  guilty  to  be 
entered,  whenever  the  prisoner  failed  or  refused  to  plead", 
and  the  trial  then  proceeds  to  the  end  as  if  he  had  volun- 
tarily pleaded. 

If  upon  arraignment,  the  prisoner  should  plead  guilty,  it 
would  appear,  from  a  superficial  consideration  of  the  mat- 
ter, that  no  further  proof  need  be  required.  But,  strange 

1  Which  was  as  follows :  "  That  the  prisoner  be  remanded  to  the  prison 
from  whence  he  came ;  and  put  Into  a  low  dark  chamber ;  and  there  be 
laid  on  his  back,  on  the  bare  floor,  naked,  unless  where  decency  forbids; 
that  there  be  placed  upon  his  body,  as  great  a  weight  of  iron  as  he  could 
bear,  and  more ;  that  he  have  no  sustenance,  save  only,  on  the  first  day 
three  morsels  of  the  worst  bread ;  and,  on  the  second  day,  three  draughts 
of  standing  water,  that  should  be  nearest  to  the  prison  door;  and  in  this 
situation  such  should  be  alternately  his  daily  diet  till  he  died,  or  (as 
anciently  the  judgment  ran)  till  he  answered."  4  Bl.  Com.  423. 

$   40 


110         GOVERNMENT    CONTROL   OF    CRIMINAL    CLASSES. 

as  it  may  seem,  there  have  been  cases  in  which  the  accused 
has  pleaded  guilty,  and  it  has  afterwards  been  discovered 
that  no  crime  had  been  committed.  A  tender  regard  for 
the  liberty  of  the  individual  would  suggest  the  requirement 
of  extraneous  evidence  to  prove  the  commission  of  a  crime, 
and  the  plea  of  guilty  be  admittted  only  to  connect  the 
prisoner  with  the  crime.  This  would  be  sufficient  precau- 
tion in  the  ordinary  criminal  cases,  but  in  capital  cases  it 
would  be  wise  to  authorize  a  refusal  of  all  pleas  of  guilty; 
for  a  mistake  in  such  cases  would  be  irremediable.1 

If  the  plea  is  not  guilty,  it  becomes  necessary  for  the 
State  to  show  by  competent,  legal  evidence,  that  the  de- 
fendant has  committed  the  crime  wherewith  he  is  charged. 
Except  in  a  few  cases,  where  the  subject-matter  of  the  tes- 
timony forms  a  part  of  a  public  record,  or  consists  of  the 
dying  declaration  of  the  murdered  man  in  a  case  of  homi- 
cide, which  are  made  exceptions  to  the  rule  by  the  neces- 
sities of  criminal  jurisprudence,  the  evidence  is  presented 
to  the  court  by  the  testimony  of  witnesses.  It  is  the  invari- 
able rule  of  the  criminal  law,  which  is  believed  to  be  guar- 
anteed by  the  constitutional  limitations,  that  the  testimony 
must  be  given  in  open  court  by  the  witnesses  orally,  so 
that  the  defendant  will  have  an  opportunity  to  cross- 
examine  them.2 

1  In  Stringfellow  v.  State,  26  Miss.  155,  a  confession  of  murder  was 
held  not  sufficient  to  warrant  conviction,  unless  supported  by  other  evi- 
dence showing  the  death  of  the  man  supposed  to  have  been  murdered. 
See,  also,  People  v.  Hennesy,  15  Wend.  147. 

2  Jackson  v.  Commonwealth,  19  Gratt.  656;  Johns  v.  State,  55  Md.  350', 
State  v.  Thomas,  64  N.  C.  74;  Bell  v.  State,  2  Tex.  App.  216  (28  Am.  Rep. 
429)  ;  Goodman  v.  State,  Meigs,  197.    But  if  there  has  been  a  preliminary 
examination  before  a  coroner  or  magistrate,  or  a  previous  trial,  when  the 
defendant  had  an  opportunity  to  cross-examine  the  witness,  it  will  be 
allowable  to  make  use  of  the  minutes  of  the  previous  examination  in  all 
cases  where  the  witness  is  since  deceased,  has  become  insane,  or  is  sick, 
or  is  kept  away  by  the  defendant.    Commonwealth  v.  Richards,  18  Pick. 
434;  State  v.  Hooker,  17  Vt.  658;  Brown  v.  Commonwealth,  73  Pa.  St. 
321;  Summons  v.  State,  5  Ohio  St.  325;  O'Brien  v.  Commonwealth,  6 

§  40 


THE   PLEA    OP   DEFENDANT.  Ill 

According  to  English  and  American  law,  the  presumption 
of  innocence  of  the  accused,  until  that  presumption  is  over- 
thrown by  evidence  to  the  contrary,  is  generally  held  to 
require  the  prosecution  to  dissipate  every  reasonable  doubt 
before  the  defendant  can  be  justly  pronounced  guilty. 
But  this  principle  of  criminal  law  does  not  prevent  the 
legislature  from  declaring  by  statute  that  certain  facts 
when  proven  create  a  presumption  of  guilt,  or  shall  be 
taken  as  prima  facie  evidence  of  guilt.  It  would,  of 
course,  be  different  if  the  statute  created  a  conclusive  pre- 
sumption of  guilt  from  the  proof  of  certain  facts.  Such  a 
conclusive  presumption  when  created  by  statute,  would  be 
a  violation  of  the  constitutional  requirement  of  "  due 
process  of  law."  J 

One  of  the  most  important  constitutional  requirements  in 
this  connection,  and  that  which  most  distinguishes  the  com- 
mon-law system  of  criminal  procedure  from  that  of  the 
European  continent,  is  that  the  accused  can  never  be  com- 
pelled to  criminate  himself  by  his  evidence.  Nor  can  he  be 
compelled  to  testify  to  any  degree  whatever.  On  the  con- 
tinent of  Europe  he  is  compelled  to  answer  every  question 
that  is  propounded  to  him  by  the  presiding  judge.  In 
England  and  America  he  may  now  testify  in  his  own  behalf, 
but  the  privilege  of  remaining  silent  is  so  strictly  guarded, 
that  it  is  very  generally  held  to  be  error  for  the  State  to  com- 
ment on,  and  to  draw  adverse  inferences  from,  his  failure 
to  take  advantage  of  the  opportunity  to  testify  in  his  own 
behalf.  The  Anglo-Saxon  spirit  of  fair  play  requires  the 
State  to  convict  the  accused  without  the  aid  of  extorted 
confessions,  and  will  not  allow  such  criticisms  on  his  silence.2 

Bush,  603;  Pope  v.  State,  22  Ark.  371;  Davis  v.  State,  17  Ala.  354;  Ken- 
dricks  v.  State,  10  Humph.  479;  People  v.  Murphy,  45  Cal.  137. 

1  State  v.  Beach,  147  Ind.  74;  States.  Anderson,  5  Wash.  St.  350  (31 
P.  969)  ;  Floeck  v.  State  (Tex.  Cr.  App.),  80S.  W.  794;    Wooten  v.  State, 
23  Fla.   335;   People   ».  Cannon,   139  N.  Y.  32;  People  v.  Quinn,  Ib.; 
People  v.  Bartholf,  Ib. 

2  See  Commonwealth  v.  Bonner,  97    Mass.    587;    Commonwealth  v. 

§  40 


112         GOVERNMENT    CONTROL   OF   CRIMINAL    CLASSES. 

But  if  he  goes  upon  the  witness-stand,  while  he  still  has 
the  privilege  of  deciding  how  far  and  as  to  what  facts  he 
shall  testify,  and  may  refuse  to  answer  questions  which  may 
tend  to  criminate  him,  the  State  attorney  may  comment  on 
the  incompleteness  of  the  evidence  and  his  refusal  to  an- 
swer proper  questions.  Having  put  himself  upon  the  stand, 
very  little  weight  can  be  given  to  his  testimony,  if  he  does 
not  tell  the  whole  truth,  as  well  as  nothing  but  the  truth.1 
It  is  hardly  necessary  to  state  that  a  full  opportunity 
must  be  given  to  the  accused  to  defend  himself  against  the 
charge  of  the  State.  Without  such  an  opportunity,  the 
proceeding  would  be  only  ex  parted  For  that  reason,  a 
State  statute  has  been  declared  to  be  unconstitutional, 
which  provides  that  the  jury  may  return  a  verdict  of  guilty 
of  embezzlement,  on  an  indictment  which  charges  the  de- 
fendant with  larceny.3 

§  41.  Trial  by  jury — Legal  jeopardy.  —  All  prosecu- 
tions are  tried  at  common  law  by  a  jury,  and  in  some  of 
our  State  constitutions  the  right  of  trial  by  jury  is  ex- 
pressly guaranteed.4  Where  the  right  is  guaranteed  with- 
out restriction,  it  means  a  common-law  trial  by  jury  ;  and 

Morgan,  107  Mass.  109;  Commonwealth  v.  Nichols,  114  Mass.  285  (19 
Am.  Rep.  346);  Commonwealth  v.  Scott,  123  Mass.  239  (25  Am.  Rep.  87); 
State  v.  Cameron,  40  Vt.  555;  Brandon  o.  People,  42  N.  Y.  265;  Connors 
v.  People,  50  N.  Y.  240;  Stover  v.  People,  56  N.  Y.  315;  Devries  v. 
Phillips,  63  N.  C.  53;  Birdw.  State,  50  Ga.  585;  Calkins  v.  State,  18  Ohio 
St.  366;  Knowles  v.  People,  15  Mich.  408;  People  v.  Tyler,  36  Cal.  522. 
See,  contra,  States.  Bartlett,  55  Me.  200;  State  v.  Lawrence,  57  Me. 376; 
State  v.  Cleaves,  59  Me.  298  (8  Am.  Rep.  422). 

1  State  v.  Ober,  52  N.  H.  459  (13  Am.  Rep.  88) ;  State  v.  Wentworth,  65 
Me.  234  (20  Am.  Rep.  688;  Connors  v.  People,  50  N.  Y.  240. 

2  In  re  Roberta  (Kan.  App.),  45  P.  942. 

3  Howland  v.  State,  58  N.  J.  L.  18. 

*  State  v.  Craig,  80  Me.  85;  State  v.  Pugsley,  76  Iowa,  742;  City  of 
Creston  v.  Nye,  74  Iowa,  369;  Grand  Rapids  &  I.  Ry.  Co.  v.  Sparrow,  36 
F.  210;  Jester  v.  State,  26  Tex.  App.  369;  Conners  ».  Burlington,  etc.,Ry. 
Co.,  74  Iowa,  383;  Thomas  v.  Hilton  (Wash.),  17  P.  882;  State  ».  Cot- 
trill,  31  W.  Va.  162. 
§  41 


TRIAL    BY   JURY — LEGAL    JEOPARDY.  113 

where  at  common  law  certain  offenses  were  triable  by  the 
court  without  the  aid  of  a  jury,  the  jury  is  not  now  re- 
quired.1 Whether  in  the  absence  of  an  express  guaranty 
of  the  trial  by  jury,  it  could  be  abolished  by  the  legisla- 
ture, is  difficult  to  determine.  If  one  can  keep  his  judg- 
ment unbiased  by  the  prevailing  sentiment,  which  makes 
of  the  jury  "the  palladium  of  liberty,"  "the  nation's 
cheap  defender,"  etc.,  it  would  seem  that  he  must  conclude 

1  What  are  the  common-law  characteristics  of  a  jury  trial,  are  so  fully 
set  forth  and  explained  in  books  of  criminal  procedure,  that  any  state- 
ment of  them  in  this  connection  is  unnecessary.  State  v.  Churchill,  48 
Ark.  426.  It  is  not  a  violation  of  the  constitutional  guaranty  of  a  trial 
by  jury,  if  in  the  enforcement  of  city  ordinances,  juries  are  not  required. 
State  u.  City  of  Topeka,  36  Kan.  76;  Wong  v.  City  of  Astoria,  13  Oreg. 
538.  So,  also,  in  enforcing  the  subpoenas  of  the  United  States  Interstate 
Commission.  Interstate  Commerce  Commission  u.  Brimson,  154  U.  S. 
447. 

It  is  also  held  to  be  no  violation  of  this  constitutional  provision  for 
the  statutes  to  authorize  the  defendants  in  criminal  cases,  and  both 
parties  in  civil  suits,  to  waive  a  jury,  and  try  the  case  before  a  judge 
alone.  Laverty  v.  State,  109  Ind.  217;  Warwick  v.  State,  47  Ark.  568; 
Moore  v.  State,  21  Tex.  App.  666;  Citizens  Gaslight  Co.  v.  Wakefleld,  161 
Mass.  432. 

It  seems  that  where  the  offense  is  of  grave  import  a  statute  is  uncon- 
stitutional, which  does  not  provide  for  a  trial  by  jury;  as,  for  example, 
where  property  of  large  or  substantial  value  is  directed  to  be  condemned 
or  destroyed,  because  it  was  used  in  violation  of  law.  This  ruling  was 
made  iu  a  case  under  the  fishery  law  of  New  York,  which  provided  that 
vessels,  unlawfully  used  in  disturbing  oyster  beds,  shall  be  seized,  and 
condemned  to  be  sold  in  proceedings  before  a  justice  of  the  peace,  with 
out  the  intervention  of  a  jury.  This  law  was  held  to  be  a  violation  of 
the  constitutional  guaranty  of  trial  by  jury.  Colon  v.  Lisk,  153  N.  Y. 
188;  aff'g  s.  c.  43  N.  Y.  S.  364.  On  the  other  hand,  under  the  same  law, 
the  summary  destruction  of  flshing  nets  by  a  constable  or  peace  officer, 
when  found  on  or  near  the  shores  of  the  waters,  was  held  to  be  consti- 
tutional, even  though  there  has  been  no  judicial  condemnation  of  these 
contraband  articles,  with  or  without  a  jury.  Lawton  v.  Steele,  119  N.  Y. 
226;  s.  c.  152  U.  S.  133. 

The  common  law  permitted  courts  to  commit  persons  for  contempt 
of  court, without  the  verdict  of  a  jury;  and  it  has  been  held  that  the  leg- 
islature has  no  right  to  curtail  the  power  of  the  courts  to  punish  sum- 
marily for  contempt.  Hale  v.  State,  55  Ohio  St.  210;  In  re  McAdam,  64 
Hun, 637. 

8  §    41 


114         GOVERNMENT   CONTROL   OP   CRIMINAL   CLASSES. 

that  the  jury  is  not  needed  to  make  the  trial  "  due  process 
of  law;  "  and  where  the  constitutional  elause  reads  in  the 
alternative,  as  it  did  in  the  Magna  Charta,  *'  by  the  judg- 
ment of  his  peers  or  the  law  of  the  law,"  the  presumption 
becomes  irresistible  that  when  the  trial  by  jury  is  not  ex- 
pressly guaranteed  the  power  of  the  legislature  to  abolish 
the  jury  system  is  free  from  constitutional  restraint.  But 
in  the  present  temper  of  public  opinion  concerning  the 
sacredness  of  the  right  of  trial  by  jury,  it  would  not  be 
surprising  if  the  courts  should  pronounce  an  express  guar- 
anty to  be  unnecessary. 

But,  in  enforcing  the  constitutional  requirement  of  a  trial 
by  jury,  the  courts  recognize  the  full  right  of  the  legisla- 
ture to  prescribe  the  mode  and  manner  of  conducting  trials 
by  jury,  as  long  as  the  right  itself  has  not  been  materially 
impaired  thereby.  It  is,  for  example,  permissible  for  the 
legislature  to  reduce  the  number  of  jurors  in  a  panel, 
whether  the  change  refers  to  the  grand  or  petit  juries.1 

So,  likewise,  is  the  legislature  empowered  to  regulate 
and  change  the  grounds  of  challenge  to  jurors.2 

So,  also,  a  statute,  authorizing  struck  juries,  is  not  con- 
stitutionally objectionable,  because  it  is  a  privilege  of  which 
very  few  can  afford  to  avail  themselves.3 

It  would,  of  course,  be  unconstitutional,  if  there  was 
any  discrimination,  by  law  or  by  jury  commissioners,  in 
administering  the  law,  against  any  race  in  making  up  the 
list  of  jurors,  or  in  drawing  the  panels.4 

1  State  v.  Bates  (Utah),  47  P.  78;  State  v.  Thompson  (Utah),  50  P. 
409;  State  v.  Carrington  (Utah),  50  P.  526;  Fant  v.  Buchanan  (Miss.),  17 
So.  371.     But  see  contra,  as  to  grand  juries,  State  v.  Hartley  (Nev.),  40 
P.  372. 

2  Spies  v.  People,  122  111.  1;  People  v.  Ah  Lee  Doon,  97  Gal.  171. 
8  Lommen  v.  Minneapolis  Gaslight  Co.,  65  Minn.  196. 

4  State  0.  Joseph,  45  La.  Ann.  903.    This  case  was  one  of  alleged  dis- 
crimination against  the  colored  race  in  the  trial  of  a  colored  person.     It 
was  held  that  the  mere  absence  of  negroes  from  the  general  venire  did  not 
prove  unconstitutional  discrimination,  where  it  was  not  shown  that  the 
§   41 


TRIAL    BY   JURY LEGAL    JEOPARDY.  115 

The  last  constitutional  requirement  concerning  criminal 
trials  to  be  considered  is  that  which  declares  that  no  person 
shall  "  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb."  A  person  is  said  to  have  been  in 
legal  jeopardy  when  he  is  brought  before  a  court  of  com- 
petent jurisdiction  for  trial,  on  a  charge  that  is  properly 
laid  before  the  court,  in  the  form  of  an  indictment  or  an 
information,  and  a  jury  has  been  impaneled  and  sworn  to 
try  him.  When  this  is  done,  the  defendant  is  entitled  to 
have  the  case  proceed  to  a  verdict,  and  if  the  prosecution 
should  be  dropped  by  the  entry  of  a  nolle  prosequi  against 
the  defendant's  will,  it  is  of  the  same  effect  as  if  the  case 
had  ended  in  acquittal  of  the  defendant.  There  cannot  be 
any  second  prosecution  for  the  same  offense.1  But  if  the 
prosecution  should  fail  on  account  of  some  defect  in  the 
indictment,  or  for  want  of  jurisdiction,2 or  if  for  unavoidable 

names  of  negroes  were  excluded  from  the  general  venire  box,  from  which 
the  venire  was  drawn. 

1  Commonwealth  v.  Tuck,  20  Pick.  365;  People  v.  Barrett,  2  Calnes, 
304;  State  v.  Alman,  64  N.  C.  364;  Nolan  v.  State,  55  Ga.  521;  Grogan  v. 
State,  44  Ala.  9;  State  v.  Connor,  5  Cold.  311 ;  Mounts  v.  State,  14  Ohio, 
295;  Baker  v.  State,  12  Ohio  St.  214;  State  v.  Callendine,  8  Iowa,  288- 
But  see  State  ».  Champeau,  53  Vt.  313  (36  Am.  Rep.  754),  in  which  a  nolle 
prosequi  at  this  stage  is  held  not  to  constitute  a  bar  to  a  second  prosecu- 
tion.   See,  generally,  as  to  what  constitutes  a  legal  jeopardy:  State  v. 
Garvey,  42  Conn.  232;  People  v.  McGowan,  17  Wend.  386;  Commonwealth 
v.  Alderman,  4  Mass.  477;  State  v.  Little,  1  N.  H.  257;  Williams  v.  Com- 
monwealth, 2  Gratt.  568;  Hoffman  ».  State,  20  Md.  475;  State  v.  Spier,  1 
Dev.  491;  McFadden  v.  Commonwealth,  23  Pa.  St.  12;  State  ».  Ned,  7 
Port.  217;  Lee  v.  State,  26  Ark.  260  (7  Am.  Rep.  611);  O'Brian  v.  Com- 
monwealth, 9  Bush,  333  (15  Am.  Rep.  715)  ;  Price  v.  State,  19  Ohio,  423; 
Wright  v.  State,  6  Ind.  292;  State  v.  Nelson,  26  Ind.  366;  People  v.  Cook, 
10  Mich.  164;  State  v.  Green,  16  Iowa,  239;  People  v.  Webb,  28  Gal.  467; 
State  v.  Richardson,  47  S.  C.  166.     A  civil  suit  after  criminal  prosecution 
does    not  constitute  a  second  jeopardy  in  the  constitutional    sense. 
State  v.  Roby,  142  Ind.  168. 

2  Commonwealth  v.  Bakeman,  105  Mass.  53;  Black  v.  State,  36  Ga. 
447;  Kohlheimer  v.  State,  39    Miss.   548;  Mount  v.   Commonwealth,  2 
Duv.  93;  Gerard  v.  People,  4  111.  363;  Commonwealth  v.  Goddard,  13 
Mass.  455;  People  ».  Tyler,  7  Mich.  161. 

§   41 


116         GOVERNMENT    CONTROL    OF    CRIMINAL    CLASSES. 

reasons,  the  court  has  to  adjourn  and  the  jury  be  discharged 
without  a  verdict,1  as  when  the  death  of  a  judge  or  of  a  juror 
occurs,2  or  the  jury  is  unable,  after  a  reasonable  effort, 
to  agree  upon  a  verdict,  and  a  mistrial  has  to  be  ordered.3 
A  second  prosecution  may  also  be  instituted  when  a  ver- 
dict is  set  aside,  or  the  judgment  reversed,  on  the  ground  of 
error.4 

§  42.  Bight  of  appeal. — In  the  English  criminal  law, 
no  provision  whatever  is  made  for  the  review  of  criminal 
convictions  by  the  higher  or  appellate  courts ;  the  only  relief 
from  an  unjust  verdict  being  an  appeal  to  the  Home  Sec- 
retary of  the  government,  who  will  recommend  a  pardon 
by  the  Crown,  if  the  facts  of  the  case  warrant  it.  In  this 
country,  the  right  of  appeal  to  the  higher  courts  is  gener- 
erally  provided  for  in  criminal,  as  in  civil,  cases.  So  uni- 
versal is  this  provision  for  an  appeal  in  criminal  cases,  that 
there  is  a  manifest  disposition  to  claim  the  right  of  appeal 
to  the  courts  of  last  resort  as  an  inalienable  constitutional 
right.  But  the  cases,  in  which  the  claim  is  made,  that  any 
denial  or  limitation  of  the  right  of  appeal  is  a  violation  of 

1  See  United  States  v.  Perez,  9  Wheat.  579;  Commonwealth  v.  Boden, 
9  Mass.  194;  Hoffman  v.  State,  20  Md.  425;  State  v.  Wiseman,  68  N.  C. 
203;  State  v.  Battle,  7  Ala.  259;  Taylor  v.  State,  35  Tex.  97;  Wright  v. 
State,  5  Ind.  290;  Price  v.  State,  36  Miss.  533.    The  result  is  the  same  if 
the  adjournment  without  a  verdict  is  ordered  with  the  express  or  implied 
consent  of  the  defendant.    Commonwealth  v.  Stowell,  9  Met.  572 ;  State 
v.  Slack,  6  Ala.  676. 

2  Nugent  v.  State,  4  Stew.   &  Port.    72;  Commonwealth  v.  Fells,  9 
Leigh,  620;  Mahala».  State,  10  Yerg.  532;  State  ».  Curtis,  5  Humph.  601; 
Hector  v.  State,  2  Mo.  166. 

3  Peoples.  Goodwin,  18  Johns.   187;  State  v.  Prince,  63  N.  C.  529; 
Lester  v.   State,   33  Ga.  329;  Moseley  «.  State,  33  Tex.    671;   State  v. 
Walker,   26  Ind.   346;  Commonwealth  v.  Olds,  5  Lit.  140;    Dobbins  v. 
State,  14  Ohio  St.  493;  Ex  parte  McLaughlin,  41  Cal.  211;  10  Am.  Rep. 
272. 

4  See  State  v.  Lee,  10  R.  1.  494;  Casborus  v.  People,  13  Johns.  329; 
McKeea.  People,  32  N.  Y.  239;  State  v.  Norvell,  2  Yerg.  24;  Kendall  v. 
State,  65  Ala.  492;  State  v.  Redman,  17  Iowa,  329. 

§   42 


IMPRISONMENT    FOR    CRIME — HARD    LABOR,  ETC.       117 

the  constitutional  guaranty  of  "  due  process  of  law,"  have 
generally  denied  the  claim,  and  maintained  that  a  right  of 
review  in  criminal  cases  by  an  appellate  cwurt  "  is  not  a  nec- 
essary element  of  due  process  of  law,  but  it  is  wholly 
within  the  discretion  of  each  State  to  refuse  it  or  grant  it 
on  any  terms."  l 


SECTION  43.  —  Imprisonment  for  crime  —  Hard  labor  —  Control  of  con- 
vict in  prison. 
43a. —  Convict  lease  system. 

§43.  Imprisonment  for  crime  —  Hard  labor  —  Con- 
trol of  convicts  in  prison .  —  The  most  common  mode  of 
punishment  for  crime  at  the  present  day  is  confinement  in 
some  jail  or  penitentiary.  The  liberty  of  the  convict  is 
thus  taken  away  for  a  specified  period,  the  length  of  which 
is  graded  according  to  the  gravity  of  the  offense  committed. 
What  shall  be  the  proper  amount  of  imprisonment  to  be 
imposed  as  a  reasonable  punishment  for  a  particular  crime 
is  a  matter  of  legislative  discretion,  limited  only  by  the 
vague  and  uncertain  constitutional  limitation,  which  pro- 
hibits the  infliction  of  «*  cruel  and  unusual  punishments."2 
Within  the  walls  of  the  prison  the  convict  must  conduct 
himself  in  an  orderly  manner,  and  conform  his  actions  to 
the  ordinary  prison  regulations.  If  he  should  violate  any 
of  these  regulations,  he  may  be  subjected  to  an  appropriate 
punishment,  and  for  serious  cases  of  insubordination,  cor- 
poral punishment  is  very  often  inflicted,  even  in  those 
States  in  which  the  whipping-post  has  been  abolished.8 

1  Andrews  v.  Swartz,  156  U.  S.  272;  Allen  v.  State  of  Georgia,  166  U. 
S.  138;  Ex  parte  Kinnebrew,  35  Fed.  62.     But  see  contra.  In  re  Roberts 
(Kan.  App.)  46  P.  942. 

2  As  to  the  meaning  of  this  limitation,  Bee  ante,  §§  11,  12. 

3  See  ante,  §  13.    It  is  lawful  for  the  legislature  to  provide  for  the 
reduction  in  the  term  of  service  as  a  reward  for  good  conduct,  and  this 
provision  creates  in  the  convicts  a  vested  right,  which  cannot  be  taken 
away  by  subsequent  legislation.    In  re  Canfleld,  98  Mich.  644.    This  is, 

§   43 


118         GOVERNMENT   CONTROL   OF   CRIMINAL   CLASSES. 

For  minor  offenses,  it  is  usual  to  confine  the  criminal  in 
the  county  jail,  and  the  punishment  consists  only  of  a  de- 
privation of  one's  liberty.  But  for  more  serious  and  graver 
offenses,  the  statutes  provide  for  the  incarceration  of  the 
convict  in  the  penitentiary,  where  he  is  required  to  perform 
hard  labor  for  the  benefit  of  the  State.  The  product  of 
his  labor  is  taken  by  the  State  in  payment  of  the  cost  of 
his  maintenance.  It  cannot  be  doubted  that  the  State  has 
a  constitutional  right  to  require  its  convicts  to  work  during 
their  confinement,  and  there  has  never  been  any  question 
raised  against  the  constitutionality  of  such  regulations.1 
The  penitentiary  system  is  now  a  well  recognized  feature 
of  European  and  American  penology. 

§  43a.  Convict  lease  system.  —  An  interesting  question 
has  lately  arisen  in  this  country,  in  respect  to  the  State 
control  of  convicts.  In  many  of  the  Southern  States,  in- 
stead of  confining  the  convict  at  hard  labor  within  the  walls  of 
the  penitentiary,  in  order  to  get  rid  of  the  burden  of  main- 
taining and  controlling  them  within  the  penitentiary,  pro- 
vision wasmade  forleasing  theconvicts  to  certain  contractors 
to  be  worked  in  different  parts  of  theState, usually  in  the  con- 
struction of  railroads.  The  entire  control  of  the  convict  was 
transferred  to  the  lessee,  who  gave  bond  that  he  would  take 

likewise,  the  case  with  the  provision  for  letting  convicts  out  on  their 
parole,  in  the  discretion  of  the  prison  board,  and  their  subsequent  dis- 
charge from  further  custody,  upon  their  continued  maintenance  of  their 
record  for  good  behavior  for  a  stated  period.  George  v.  People,  167 
111.  417. 

1  See  City  of  Topeka  v.  Boutwell,  53  Kan.  20,  where  the  question  was 
raised  but  decided  in  favor  of  the  regulations.  See,  also,  Bronk  v. 
Barckley,  13  App.  Div.  72;  43  N.  Y.  S.  400,  where  the  right  to  compel 
convicts  to  work  for  the  profit  of  the  State,  and  to  regulate,  limit  and 
control  such  work,  was  not  only  conceded;  but  it  was  further  held 
that,  where  the  managers  of  a  State  prison  had  made  a  contract  for 
convict  labor,  such  contract  cannot  be  impaired  by  subsequent  con- 
stitutional or  statutory  legislation,  limiting  or  prohibiting  such  convict 
labor. 

§   43a 


CONVICT    LEASE    SYSTEM.  119 

care  and  guard  them,  and  promised  to  pay  a  penalty  to  the 
State  for  the  escape  of  each  convict.  The  frequency  of  the 
reports  of  heartless  cruelty  on  the  part  of  lessees  towards 
the  convicts,  prompted  by  avarice  and  greed,  and  rendered 
possible  by  the  most  limited  supervision  of  the  State,  has 
aroused  public  sentiment  in  opposition  to  the  convict  lease 
system  in  some  of  these  States,  and  we  may  confidently 
expect  a  general  abolition  of  the  system  at  no  very  distant 
day.  But  it  is  still  profitable  to  consider  the  constitution- 
ality of  the  law,  upon  which  the  convict  lease  system  is 
established.  In  Georgia,  the  constitutionality  of  the  law 
was  questioned,  but  sustained.  In  pronouncing  the  statute 
constitutional,  the  court  said:  "  In  the  exercise  of  its  sov- 
ereign rights  for  the  purpose  of  preserving  the  peace  of 
society,  and  protecting  the  rights  of  both  person  and  prop- 
perty,  the  penitentiary  system  of  punishment  was  estab- 
lished. It  is  a  part  of  that  police  system  necessary,  as  our 
lawmakers  thought,  to  preserve  order,  peace  and  the  security 
of  society.  The  several  terms  of  these  convicts  fixed  by 
the  judgments  of  the  courts  under  the  authority  of  the  law, 
simply  subject  their  persons  to  confinement,  and  to  such 
labor  as  the  authority  may  lawfully  designate.  The  sen- 
tence of  the  courts  under  a  violated  law  confers  upon  the 
State  this  power,  no  more;  the  power  to  restrain  their 
liberty  of  locomotion,  and  to  compel  labor  not  only  for 
the  purposes  of  health,  but  also  to  meet  partially  or  fully 
the  expenses  of  their  confinement.  The  confinement  neces- 
sarily involved  expenses  of  feeding,  clothing,  medical  atten- 
tion, guards,  etc.,  and  this  has  been  in  its  past  history  a 
grievous  burden  upon  the  taxpayers  of  the  State.  Surely 
it  was  competent  for  the  sovereign  to  relieve  itself  of  this 
burden  by  making  an  arrangement  with  any  person  to  take 
charge  of  these  convicts  and  confine  them  securely  to  labor 
in  conformity  with  the  judgments  against  them  for  a  time 
not  exceeding  their  terms  of  sentence.  It  was  a  transfer 
by  the  State  to  the  lessee  of  the  control  and  labor  of  these 

§  43a 


120         GOVERNMENT    CONTROL   OF    CKIMINAL    CLASSES. 

persons  in  consideration  that  they  would  feed,  clothe,  ren- 
der medical  aid  and  safely  keep  them  during  a  limited 
period."  J  It  cannot  be  doubted  that,  as  a  general  proposi- 
tion, in  the  absence  of  express  constitutional  limitations  as 
to  the  place  of  imprisonment  and  labor,  the  convict  could 
be  confined  and  compelled  to  labor  in  any  place  within  the 
State,  and  in  fact  he  may  be  compelled  to  lead  a  migratory 
life,  going  from  place  to  place,  performing  the  labor  re- 
quired of  him  by  the  law  of  the  land.2  And  the  only  case 
in  which  such  a  disposition  of  the  convict  may  be  ques- 
tioned, would  be  where  this  law  was  made  to  apply  to  one, 
who  had  been  convicted  under  a  different  law,  the  terms  of 
which  allowed  or  required  the  sentence  to  provide  for  con- 
finement at  hard  labor  within  the  walls  of  the  penitentiary. 
A  convict  under  such  a  sentence  could  not,  in  the  enforce- 
ment of  a  subsequent  statute,  be  taken  out  of  the  peniten- 
tiary and  be  compelled  to  work  in  other  parts  of  the  State. 
The  application  of  the  new  law  in  such  a  case  would  give  it 
a  retrospective  operation,  and  make  it  an  ex  post  facto  law. 
But  ordinary  constitutional  limitations  would  not  be  violated 
in  the  application  of  such  a  law  to  those  who  may  be  con- 
victed subsequently.  The  convict  lease  system  is  not  open 
to  constitutional  objection,  because  it  provides  for  the  con- 
vict to  be  carried  from  place  to  place,  performing  labor 
wherever  he  is  required.  The  objectionable  feature  of  the 
system  is  the  transfer  to  private  persons,  as  a  vested  right, 
of  the  control  over  the  person  and  actions  of  the  convict. 
It  is  true  that  all  the  rights  of  the  individual  are  subject  to 
forfeiture  as  a  punishment  for  crime,  and  the  State  govern- 
ment, as  the  representative  of  society,  is  empowered  to 
declare  the  forfeiture  under  certain  constitutional  limita- 
tions. The  State  may  subject  the  personal  liberty  of  the 
convict  to  restraint,  but  it  cannot  delegate  this  power  of 

1  Georgia  Penitentiary  Co.  v.  Nelms,  65  Ga.  499  (38  Am.  Rep.  793). 

2  Holland  v.  State,  23  Fla.  123;  City  of  Topeka  v.  Boutwell,  53  Kan,  20. 

§  43a 


CONVICT    LEASE    SYSTEM.  121 

control  over  the  convict,  any  more  than  it  can  delegate  to 
private  individuals  the  exercise  of  any  of  its  police  powers. 
The  maxim,  delegatus  non  delegare  polest  finds  an  appropri- 
ate application,  in  this  connection.1  Certainly,  when  we 
consider  the  great  likelihood  of  cruel  treatment  brought 
about  by  the  greed  and  avarice  of  the  lessees  of  the  con- 
vict, personal  interest  outweighing  all  considerations  of 
humanity,  it  would  not  require  any  stretch  of  the  meaning 
of  words  to  declare  the  convict  lease  system  a  "  cruel  and 
unusual  punishment."  The  State  may  employ  its  convicts 
in  repairing  its  roads,  in  draining  swamp  lands,  and  carry- 
ing on  other  public  works ;  the  State  may  even  lease  the 
convicts  to  labor,  the  lessee  assuming  the  expense  of  main- 
taining and  guarding  them,  provided  the  State  through  its 
officials  has  the  actual  custody  of  them  ;  but  the  State  can- 
not surrender  them  to  the  custody  of  private  individuals. 
Such  a  system  resembles  slavery  too  much  to  be  tolerated  in 
a  free  State. 

1  It  is  held  ID  Arkansas  that  the  lessee  of  the  State  penitentiary  can- 
not hire  out  the  convicts  to  others.  Arkansas  Industrial  Co.  v.  Neel,  48 
Ark.  283. 

§  43a 


CHAPTER    V. 

THE   CONTROL  OF  DANGEROUS    CLASSES,  OTHERWISE  THAN 
BY  CRIMINAL  PROSECUTION. 

SECTION  44.  Confinement  for  infectious  and  contagious  diseases. 

45.  Confinement  of  the  insane. 

46.  Control  of  the  insane  in  the  asylum. 

47.  Punishment  of  the  criminal  insane. 

48.  Confinement  of  habitual  drunkards. 

49.  Police  control  of  vagrants. 

60.  Police  regulation  of  mendicancy. 

51.  Police  supervision  of  habitual  criminals. 

52.  State  control  of  minors. 

§  44.  Confinement  for  infectious  and  contagions 
diseases.  —  The  right  of  the  State,  through  its  proper 
officer,  to  place  in  confinement  and  to  subject  to  regular 
medical  treatment  those  who  are  suffering  from  some  con- 
tagious or  infectious  disease,  on  account  of  the  danger  to 
which  the  public  would  be  exposed  if  they  were  permitted 
to  go  at  large,  is  so  free  from  doubt  that  it  has  been  rarely 
questioned.1  The  danger  to  the  public  health  is  a  sufficient 
ground  for  the  exercise  of  police  power  in  restraint  of  the 
liberty  of  such  persons.  This  right  is  not  only  recognized 
in  cases  where  the  patient  would  otherwise  suffer  from 

1  Harrison  w.  Baltimore,  1  Gill,  264.  In  this  case  it  was  held  that  it 
was  competent  for  the  health  officer  to  send  to  the  hospital  persons  OH 
board  of  an  infected  vessel  who  have  the  infectious  disease,  and  all 
others  on  board  who  may  be  liable  to  the  disease,  if  it  be  necessary,  in 
his  opinion,  to  prevent  the  spread  of  the  disease.  The  same  conclusion 
was  reached  as  to  the  constitutional  sanction  of  the  summary  detention 
and  disinfection,  by  order  of  the  State,  or  other  local  board  of  health,  of 
immigrants  and  others  who  may  be  likely  to  spread  contagious  and  infec- 
tious diseases.  In  re  Smith,  84  Hun,  465;  Minneapolis,  St.  P.  &  S.  S. 
M.  Ry.  v.  Milner,  57  Fed.  276;  Compagnie  Francaise  de  Navigation  a 
Vapeur  v.  State  Board  of  Health,  51  La.  Ann.  645. 
(122)  §  44 


CONFINEMENT    FOR    DISEASES.  123 

neglect,  but  also  where  he  would  have  the  proper  attention 
at  the  hands  of  his  relatives.  While  humanitarian  im- 
pulses would  prompt  such  interference  for  the  benefit  of 
the  homeless,  the  power  to  confine  and  to  subject  by  force 
to  medical  treatment  those  who  are  afflicted  with  a  conta- 
gious or  infectious  disease,  rests  upon  the  danger  to  the 
public,  and  it  can  be  exercised,  even  to  the  extent  of  trans- 
porting to  a  common  hospital  or  lazaretto  those  who  are 
properly  cared  for  by  friends  and  relatives,  if  the  public 
safety  should  require  it.1 

But  while  it  may  be  a  legitimate  exercise  of  govern- 
mental power  to  establish  hospitals  for  the  care  and 
medical  treatment  of  the  poor,  whatever  may  be  the 
character  of  the  disease  from  which  they  are  suffering, 
unless  their  disease  is  infectious,  their  attendance  at  the 
hospital  must  be  free  and  voluntary.  It  would  be  an 
unlawful  exercise  of  police  power,  if  government  officials 
should  attempt  to  confine  one  in  a  hospital  for  medical 
treatment,  whose  disease  did  not  render  him  dangerous 
to  the  public  health.  As  a  matter  of  course,  the  move- 
ments of  a  person  can  be  controlled,  who  is  in  the  delir- 
ium of  fever,  or  is  temporarily  irrational  from  tiny  other 
cause;  but  such  restraint  is  permissible  only  because  his 
delirium  disables  him  from  acting  rationally  in  his  own 
behalf.  But  if  one,  in  the  full  possession  of  his  mental 
faculties,  should  refuse  to  accept  medical  treatment  for  a 

1  Recently,  a  committee  of  the  New  York  Board  of  Health,  which 
had  been  appointed  to  report  on  the  care  and  treatment  of  cases  of 
tuberculosis,  recommended  that  a  hospital  for  the  exclusive  treatment 
of  consumptives,  be  established,  and  urged  that  legislation  be  sought, 
whereby  tuberculosis  may  be  treated  by  the  Board  of  Health  as  any  other 
contagious  disease,  and  the  sufferers  from  this  deadly  disease  be 
isolated  from  the  rest  of  the  people.  The  Board  adopted  the  report  of 
the  committee  and  resolved  to  take  steps  to  carry  the  recommenda- 
tions of  the  committee.  Should  the  legislature  indorse  this  view  of 
tuberculosis,  and  empower  the  boards  of  health  to  isolate  the  victims 
of  this  disease,  there  is  no  room  for  questioning  the  constitutionality 
of  the  legislation. 
§  44 


124  CONTROL    OF   DANGEROUS    CLASSES. 

disease  that  is  not  infectious  or  contagious,  while  possibly, 
in  a  clear  case  of  beneficial  interference  in  an  emergency, 
no  exemplary  or  substantial  damages  could  be  recovered, 
it  would  nevertheless  be  an  unlawful  violation  of  the 
rights  of  personal  liberty  to  compel  him  to  submit  to 
treatment.  The  remote  or  contingent  danger  to  society 
from  the  inheritance  of  the  disease  by  his  children  would 
be  no  ground  for  interference.  The  danger  must  be  im- 
mediate. 

§  45.  The  confinement  of  the  insane. — This  is  one 
of  the  most  important  phases  of  the  exercise  of  police 
power,  and  there  is  the  utmost  need  of  an  accurate  and 
exact  limitation  of  the  power  of  confinement.  In  the 
great  majority  of  the  cases  of  confinement  for  insanity,  it  is 
done  at  the  request  and  upon  the  application  of  some  loving 
friend  or  relative ;  the  parent  secures  the  confinement  of 
his  insane  child,  the  husband  that  of  his  demented  wife, 
ana  vice  versa;  and  no  doubt  in  comparatively  few  cases  is 
there  the  slightest  ground  for  the  suspicion  of  oppression 
in  the  procurement  of  the  confinement.  But  cases  of  the 
confinement  of  absolutely  sane  people,  through  the  prompt- 
ings of  greed  and  avarice,  or  through  hate  and  ignorance, 
do  occur,  even  now,  when  public  opinion  is  thoroughly 
aroused  on  the  subject,  and  they  occurred  quite  frequently 
in  England,  when  private  insane  asylums  were  common.1 

Although  these  cases  of  unjust  confinement  are  probably 
infrequent,  perhaps  rare,  still  the  idea  of  the  forcible  con- 
finement in  an  insane  asylum,  of  a  sane  person  is  so  horrible, 
and  the  natural  fear  is  so  great  that  the  number  of  such 
cases  is  underestimated,  because  of  the  difficulty  experienced 
in  procuring  accurate  statistical  knowledge  (that  fear  being 

1  It  has  been  held  in  California  that  the  business  of  maintaining  a 
private  asylum,  cannot  be  prohibited.    Ex  parte  Whitwell,  98  Cal.  73.     I 
do  not  consider  this  a  very  reliable  precedent  for  the  reasons  set  forth  at 
length  in  post,  §§  120  et  seq. 
§    45 


THE    CONFINEMENT    OF   THE    INSANE.  125 

heightened  by  the  well-known  differences  of  opinion,  among 
medical  experts  on  insanity,  wherever  a  case  comes  up  in 
our  courts  for  the  adjudication  upon  the  sanity  or  insanity 
of  some  one),  one  is  inclined,  without  hesitation,  to  demand 
the  rigorous  observance  of  the  legal  limitations  of  power 
over  the  insane,  and  it  becomes  a  matter  of  great  moment, 
what  constitutional  limitations  there  are,  which  bear  upon 
this  question.1 

In  what  relation  does  the  insane  person  stand  to  the 
State?  It  must  be  that  of  guardian  and  ward.  The  State 
may  authorize  parents  and  relatives  to  confine  and  care  for 
the  insane  person,  but  primarily  the  duty  and  right  of  con- 
finement is  in  the  State.  "  This  relation  is  that  of  a  ward, 
who  is  a  stranger  to  his  guardian,  of  a  guardian  who  has  no 
acquaintance  with  his  ward."  2  In  the  consideration  of  the 
rights  and  duties  incident  to  this  relation  it  will  be  neces- 
sary, first,  to  consider  the  circumstances  under  which  the 
confinement  would  be  justifiable,  and  the  grounds  upon 
which  forcible  confinement  can  be  sustained,  and  then  de- 
termine what  proceedings,  preliminary  to  confinement,  are 
required  by  the  law  to  make  the  confinement  lawful. 

The  duty  of  the  State,  in  respect  to  its  insane  popula- 
tion, is  not  confined  to  a  provision  of  the  means  of  con- 
finement, sufficient  to  protect  the  public  against  any 
violent  manifestations  of  the  disease.  The  duty  of  the 
State  extends  further,  and  includes  the  provision  of  all 
the  means  known  to  science  for  the  successful  treatment 
of  the  diseased  mind.  This  aspect  of  the  duty  of  the 
State  is  so  clearly  and  unequivocally  recognized  by  the 
authorities  and  public  opinion  in  some  of  the  States,  that 
the  statutes  impose  upon  the  State  asylums  the  duty  of 
receiving  all  voluntary  patients  for  medical  treatment,  upon 

1  For  a  careful,  able,  and  elaborate  discussion  of  the  rights  of  the 
insane,  and  of  the  power  of  the  State  over  them,  see  Judge  Cooley's 
opinion  in  the  case  of  Vandeusen  v.  Newcomer,  40  Mich.  90. 

*  Preface  to  Harrison's  Legislation  on  Insanity. 

§  45 


126  CONTROL    OF    DANGEROUS    CLASSES. 

the  payment  of  the  proper  reasonable  fees,  and  retaining 
them  as  long  as  such  patients  desire  to  remain.  In  this 
respect  the  insane  asylum  bears  the  same  relation  to  the 
public  as  the  hospital  does.  As  long  as  coercion  is  not 
employed,  there  would  seem  to  be  no  limit  to  the  power 
of  the  State  to  provide  for  the  medical  treatment  of 
lunatics,  except  the  legislative  discretion  and  the  fiscal 
resources  of  the  State.  But  when  the  lunatic  is  subjected 
to  involuntary  restraint,  then  there  are  constitutional 
limitations  to  the  State's  power  of  control. 

If  the  lunatic  is  dangerous  to  the  community,  and  his 
confinement  is  necessary  as  a  means  of  protecting  the 
public  from  his  violence,  one  does  not  need  to  go  farther 
for  a  reason  sufficient  to  justify  forcible  restraint.  The 
confinement  of  a  violent  lunatic  is  as  defensible  as  the 
punishment  of  a  criminal.  The  reason  for  both  police 
regulations  is  the  same,  viz. :  to  insure  the  safety  of  the 
public. 

But  all  lunatics  are  not  dangerous.  It  is  sometimes 
maintained  by  theorists  that  insanity  is  always  dangerous  to 
the  public,  even  though  it  may  be  presently  of  a  mild  and 
apparently  harmless  character,  because  of  the  insane  pro- 
pensity for  doing  mischief,  and  the  reasonable  possibility 
of  a  change  in  the  character  of  the  disease.  But.the  same 
might  be  said  of  every  rational  man  in  respect  to  the  pos- 
sibility of  his  committing  a  crime.  Some  one  has  said,  all 
men  are  potential  murderers.  The  confinement  of  one  who 
is  liable  to  outbursts  of  passion  would  be  as  justifiable  as 
the  confinement  of  a  harmless  idiot,  whose  dementia  has 
never  assumed  a  violent  form,  and  is  not  likely  to  change 
in  the  future,  simply  for  the  reason  that  there  is  a  bare 
possibility  of  his  becoming  dangerous. 

But  the  State,  in  respect  to  the  care  of  the  insane,  owes 

a  duty  to  these  unfortunate  people,  as  well  as  to  the  public. 

The  demented   are  as  much  under  a  natural  disability  as 

minors  of  tender  age,  and  the  State  should  see  that  the 

§  45 


THE   CONFINEMENT   OF   THE   INSANE.  127 

proper  care  is  taken  of  them.  The  position  has  been 
already  assumed  and  justified  that  the  State  may  make  pro- 
visions for  the  reception  and  cure  of  voluntary  patients, 
suffering  from  any  of  the  forms  of  dementia,  and  for  the 
same  reason  that  the  proper  authority  may  forcibly  restrain 
one  who  is  in  the  delirium  of  fever  and  subject  him  to  medi- 
cal treatment,  the  State  has  undoubtedly  the  right  to  pro- 
vide for  the  involuntary  confinement  of  the  harmlessly  in- 
sane, in  order  that  the  proper  medical  treatment  may  be 
given,  and  a  cure  effected.  The  benefit  to  the  unfortunate  is 
a  sufficient  justification  for  the  involuntary  confinement.  He 
is  not  a  rational  being,  and  cannot  judge  for  himself  what 
his  needs  are.  Judge  Cooley  says:  "  An  insane  person, 
without  any  adjudication,1  may  also  lawfully  be  restrained 
of  his  liberty,  for  his  own  benefit,  either  because  it  is  neces- 
sary to  protect  him  against  a  tendency  to  suicide  or  to  stray 
away  from  those  who  would  care  for  him,  or  because  a 
proper  medical  treatment  requires  it."  2  If  the  possible 
cure  of  the  patient  be  the  only  ground  upon  which  a  harm- 
less lunatic  could  be  confined,  as  soon  as  it  has  become 
clear  that  he  is  a  hopeless  case,  for  which  there  is  no  cure, 
he  becomes  entitled  to  his  liberty.  As  already  stated,  the 
mere  possibility  of  his  becoming  dangerous,  through  a 
change  in  the  character  of  the  disease,  will  not  justify  his 
further  detention.  But  the  confinement  of  a  hopeless  case 
of  harmless  lunacy  may  be  continued,  where  the  lunacy  is 
so  grave  that  the  afflicted  person  is  unable  to  support  him- 
self or  to  take  ordinary  care  of  himself,  and  where  if  dis- 
charged he  will  become  a  burden  upon  the  public.  That 
manifestly  could  only  happen  where  the  lunatic  was  a 
pauper.  If  he  is  possessed  of  means,  and  his  friends  and 
relatives  are  willing  to  take  care  of  him  the  forcible  confine- 
ment cannot  be  justified.  These  points  are  so  clearly  sus- 

1  As  to  the  necessity  of  adjudication  in  any  case  of  confinement  of  the 
insane,  see  post,  p.  128  et  seq. 
8  Cooley  on  Torts,  179. 

§  45 


128  CONTROL   OF   DANGEROUS    CLASSES. 

tained  by  reason  that  authorities  in  support  of  them  would 
not  be  necessary,  if  they  could  be  found.1  The  difficulties, 
in  respect  to  the  question  of  confinement  of  the  insane,  arise 
only  when  we  reach  the  discussion  of  the  preliminary  pro- 
ceedings, which  the  law  requires  to  justify  the  forcible 
restraint  of  an  insane  person. 

It  is  a  constitutional  provision  of  all  the  States,  as  well 
as  of  the  United  States,  that  *'  no  man  shall  be  deprived 
of  his  life,  liberty,  and  property,  except  by  due  process  of 
law."  There  must  be  a  judicial  examination  of  the  case, 
with  a  due  observance  of  all  the  constitutional  requirements 
in  respect  to  trials;  and  the  restraint  of  one's  liberty,  in 
order  to  be  lawful,  must  be  in  pursuance  of  a  judgment 
of  a  court  of  competent  jurisdiction,  after  one  has  had  an 
opportunity  to  be  heard  in  his  own  defense.  This  is  the 
general  rule.  The  imprisonment  of  a  criminal,  except  as 
preliminary  to  the  trial,  can  only  be  justified  when  it  rests 
upon  the  judgment  of  the  court.  Since  this  constitutional 
provision  is  general  and  sweeping  in  its  language,  there  can 
be  no  doubt  of  its  application  to  the  case  of  confinement 
of  the  insane,  and  we  would,  from  a  consideration  of  this 
constitutional  guaranty,  be  forced  to  conclude  that,  except 
in  the  case  of  temporary  confinement  of  the  dangerously 
insane,  no  confinement  of  that  class  of  people  would  be 
permissible,  except  when  it  is  done  in  pursuance  of  a  judg- 
ment of  a  court,  after  a  full  examination  of  the  facts  and 
after  an  opportunity  has  been  given  to  the  person  charged 
with  insanity  to  be  heard  in  his  own  defense.  Indeed, 
there  is  no  escape  from  this  conclusion.  But  the  adjudi- 
cations and  State  legislation  do  not  seem  to  support  this 
position  altogether. 

It  is  universally  conceded  that  every  man  for  his  own 
protection  may  restrain  the  violence  of  a  lunatic,  and  any 

1  The  opinion  of  Judge  Cooley  in  Van  Deusen  v.  Newcomer,  40  Mich. 
90,  supports  them  in  the  main. 

§   45 


THE    CONFINEMENT   OF   THE    INSANE.  129 

one  may,  at  least  temporarily,  place  any  lunatic  under  per- 
sonal restraint,  whose  going  at  large  is  dangerous  to  others.1 
But  this  restraint  has  been  held  by  some  authorities  to  be 
justifiable  without  adjudication,  only  while  the  danger  con- 
tinues imminent,  or  as  preliminary  to  the  institution  of 
judicial  proceedings  by  which  a  judgment  for  permanent 
confinement  may  be  obtained.2  It  is  believed  that  no  court 
would  justify  a  permanent  confinement  of  an  insane  person 
at  the  instance  of  a  stranger  without  adjudication ;  and  in 
almost  all  of  the  States  the  statutes  provide  for  an  adjudi- 
cation of  the  question  of  insanity  in  respect  to  any  sup- 
posed lunatic  found  going  at  large  and  without  a  home,  and 
forbid  the  confinement  of  such  person,  except  after  judg- 
ment by  the  court.3  It  may  be  assumed,  therefore,  that  in 
those  States  the  permanent  confinement  of  an  alleged  in- 
sane person  cannot  be  justified  by  proof  of  his  insanity, 
not  even  of  his  dangerous  propensities,  where  the  confine- 
ment was  at  the  instance  of  a  stranger  or  an  officer  of  the 
law,  unless  it  be  in  pursuance  of  a  judgment  of  a  court  of 
competent  jurisdiction. 

But  where  the  confinement  is  on  the  request  of  relatives, 
whose  natural  love  and  affection  would  ordinarily  be  ample 
protection  against  injustice  and  wrong,  there  is  a  tendency 
to  relax  the  constitutional  protection,  and  hold  that  rela- 
tives may  procure  the  lawful  confinement  of  the  insane, 
without  a  judicial  hearing,  provided  there  is  actual  insanity. 
The  cases  generally  hold  that  extra-judicial  confinement  at 
the  instance  of  relatives  is  lawful,  where  the  lunatic  is  harm- 
less, as  well  as  in  the  case  of  dangerous  lunacy,  and  it  would 

1  Colby  v.  Jackson,  12  N.  H.  626;  Brookshaw  v.  Hopkins, Lofl.  286; 
Williams  v.  Williams,  4  Thomp.  &  C,  251;  Scott  v.  Wakem,  3  Fost.  & 
Fin.  328;  Lott  v.  Sweet,  33  Mich.  308. 

2  Colby  v.  Jackson,  12  N.  H.  526;  Matter  of  Oaks,  8  Law  Reporter, 
122;  Com.  v.  Kirkbride,  3  Brewst.  586.     See  Ayers  v.  Russell,  50  Hun, 
282;  Porter  v.  Ritch,  70  Conn.  235. 

3  Harrison's  Legislation  on  Insanity;  Look  v.  Dean,  108  Mass.  116 
(11  Am.  Rep.  323). 

0  §    45 


130  CONTROL   OF   DANGEROUS    CLASSES. 

appear  that  this  is  the  prevailing  opinion.1  If  the  objec- 
tions to  a  judicial  hearing  were  sustainable  at  all,  it  would 
seem  that,  in  these  cases  of  confinement  on  the  request  of 

1  See  Hinchraan  v.  Richie,  2  Law  Reporter  (N.  s.),  180;  Van  Duesen 
v.  Newcomer,  40  Mich.  90;  Fletcher  v.  Fletcher,  1  El.  &  El.  420;  Denny 
v.  Tyler,  3  Allen,  225;  Davis  v.  Merrill,  47  N.  H.  208;  Cooley  on  Torts, 
179;  Look  v.  Dean,  108  Mass.  116  (11  Am.  Rep.  323);  Ayers  v.  Russell, 
50  Hun,  282.  In  many  of  the  States,  statutes  provide  for  the  intervention 
of  a  court  in  every  case  of  permanent  confinement,  to  the  extent  of 
requiring  the  physician's  certificate  of  insanity,  before  a  permanent  com- 
mitment may  be  made,  and  leave  it  to  the  discretion  of  the  judge, 
whether  the  person,  whose  commitment  is  sought,  shall  be 
brought  before  him,  or  should  receive  notice  of  the  pending 
inquiry  into  his  sanity,  notwithstanding  the  absence  from  the 
proceedings  of  the  ordinary  formalities  which  are  generally  held 
to  be  necessary  to  make  a  judicial  proceeding  "  due  process  of  law." 
Thus,  in  the  recent  case  of  Chavannes  v.  Priestley,  80  Iowa,  316,  it  was 
held  that  it  was  not  necessary  to  a  lawful  committal  that  an  insane  person 
should  be  present  and  be  heard  in  his  defense,  where  the  commissioners 
of  lunacy,  before  whom  the  inquiry  was  conducted,  upon  previous  inquiry 
should  ascertain  that  such  notice  and  presence  would  be  injurious  to  the 
insane  person.  The  court  say:  "Now  it  is  easy  to  imagine  a  case  in 
which  such  presence  could  not  with  safety  to  the  person  be  had,  nor 
could  such  a  hearing  with  safety  be  had  in  his  presence,  and  such  per- 
sons are  those  most  likely  to  need  the  beneficial  provisions  of  the  law, 
and  they  must  be  deprived  of  them  if  there  is  a  constitutional  barrier  to 
these  proceedings  in  their  absence,  and  without  notice.  *  *  *  The 
aw  and  the  courts  are  so  jealous  of  the  rights  of  persons,  both  as  to 
liberty  and  property,  that  they  view  with  distrust  any  proceedings  that 
may  affect  such  rights  in  the  absence  of  notice,  and  to  our  minds  this 
same  jealousy  pervades  the  statute  in  question,  and  the  ruling  considera- 
tion in  allowing  these  proceedings,  in  the  absence  of  the  party  and  with- 
out notice,  is  personal  to  him  and  designed  for  him.  It  is  not  a  case  in 
which  he  is  adjudged  at  faultier  in  default,  and  for  which  there  is  a  for- 
feiture of  liberty  or  property,  but  only  a  method  by  which  the  public  dis- 
charges its  duty  to  a  citizen.  *  *  *  The  law  contemplates  the  pres- 
ence of  a  person  whose  insanity  is  sought  to  be  established  in  all  cases 
except  where,  upon  inquiry,  it  is  made  to  appear  that  such  presence 
would  probably  be  injurious  to  the  person  or  attended  with  no  advantage 
to  him." 

In  Fant  v.  Buchanan  (Miss.),  17  So.  371,  it  was  held  that  the  pro- 
vision of  the  Mississippi  Code  of  '92  for  a  jury  of  six  in  inquests  of 
unacy,  did  not  violate  the  constitutional  requirement  of  "  due  process 
of  law." 

§  45 


THE    CONFINEMENT    OF   THE    INSANE.  131 

relatives,  there  would  be  the  least  need  of  this  constitu- 
tional protection,  particularly  as  the  person  confined  can 
always,  by  his  own  application,  or  through  the  application 
of  any  one  who  may  be  interested  in  him,  have  his  case 
brought  before  a  court  for  a  judicial  hearing,  in  answer  to  a 
writ  of  habeas  corpus.  And  it  may  be  that  he  needs  no 
further  protection.  But  there  is  still  some  room  for  the 
unlawful  exercise  of  this  power  of  control,  prompted  by 
cupidity  or  hate.  This  danger  may  be  extremely  limited, 
and  the  cases  of  intentional  confinement  of  sane  persons 
may  be  rare;  still  the  fact  that  they  have  occurred,  the 
difficulty  in  procuring  a  hearing  before  the  court  after 
confinement,  as  well  as  the  explicit  declaration  of  the 
constitution  that  no  man's  liberty  can  be  restrained, 
except  by  due  process  of  law,  urge  us  to  oppose  the 
prevailing  opinion,  and  to  require  a  judicial  hearing  to 
justify  any  case  of  confinement,  except  where  an  imme- 
diately threatening  danger  renders  a  temporary  restraint 
of  the  insane  person  necessary,  as  a  protection  to  th§  pub- 
lic or  to  himself.1 


1  This  has  been  the  conclusion  of  the  Minnesota  courts  in  the  recent 
cases  of  State  v.  Billings,  55  Minn.  474,  and  State  ex  rel.  Kelly  v.  Kil- 
bourne,  68  Minn.  320.  In  the  case  of  States.  Billings,  the  court  say : 
"  It  may  be  stated  generally  that  due  process  of  law  requires  that  a  party 
shall  be  properly  brought  into  court,  and  that  he  shall  have  an  oppor- 
tunity, when  there,  to  prove  any  fact  which,  according  to  the  consti- 
tution and  the  usages  of  the  common  law,  would  be  a  protection  to  him 
or  to  his  property.  People  v.  Board  of  Supervisors,  70  N.  Y.  228.  Due 
process  of  law  requires  an  orderly  proceeding  adapted  to  the  nature  of 
the  cases  in  which  the  citizen  has  an  opportunity  to  be  heard,  and  to 
defend,  enforce,  and  protect  his  rights.  A  hearing,  or  an  opportunity 
to  be  heard,  is  absolutely  essential.  « Due  process  of  law '  without 
these  conditions  cannot  be  conceived.  Stewart  v.  Palmer,  74  N.  Y.  183. 
It  follows  that  any  method  of  procedure  which  a  legislature  may,  in  the 
uncontrolled  exercise  of  its  power,  see  fit  to  enact,  having  for  its  pur- 
pose the  deprivation  of  a  person  of  his  life,  liberty,  or  property,  is  in 
no  sense  the  process  of  law  designated  and  imperatively  required  by  the 
constitution.  And  while  the  State  should  take  charge  of  such  unfor- 
tunates as  are  dangerous  to  themselves  and  to  others,  not  only  for  the 

§  45 


132  CONTROL   OF  DANGEROUS   CLASSES. 

As  a  necessary  corollary  to  the  commitment  of  insane 
persons  to  asylums  and  the  deprivation  of  their  liberty,  the 

safety  of  the  public,  but  for  their  own  amelioration,  due  regard  must  be 
had  to  the  forms  of  law  and  to  personal  rights.  To  the  person  charged 
•with  being  insane  to  a  degree  requiring  the  interposition  of  the  author- 
ities and  the  restraint  provided  for,  there  must  be  given  notice  of  the 
proceeding,  and  also  an  opportunity  to  be  heard  in  the  tribunal  which 
is  to  pass  judgment  upon  his  right  to  his  personal  liberty  in  the  future. 
There  must  be  a  trial  before  judgment  can  be  pronounced,  and  there  can 
be  no  proper  trial  unless  there  is  guaranteed  the  right  to  produce  wit- 
nesses and  to  submit  evidence.  The  question  here  is  not  whether  the 
tribunal  may  proceed  in  due  form  of  law,  and  with  some  regard  to  the 
rights  of  the  person  before  it,  but,  rather,  is  the  right  to  have  it  so  pro- 
ceed absolutely  secured?  Any  statute  having  for  its  object  the  depriva- 
tion of  the  liberty  of  a  person  cannot  be  upheld  unless  this  right  is 
secured,  for  the  object  may  be  attained  in  defiance  of  the  constitution, 
and  without  due  process  of  law. 

"  Let  us  now  turn  to  the  statute  in  question.  It  must  be  observed  at 
the  outset  that  private,  as  well  as  public,  hospitals  are  within  its  terms, 
and  for  this  reason,  if  for  no  other,  the  rights  of  the  citizen  should  be 
closely  guarded.  Section  17  requires  that  every  person  committed  to 
custody  as  insane  must  be  so  committed  in  the  manner  thereafter  pre- 
scribed. Section  19  provides  that  whenever  the  probate  judge,  or,  in 
his  absence,  the  court  commissioner,  shall  receive  information  in  writing 
(the  form  being  given)  that  there  is  an  insane  person  in  his  county  need- 
ing care  and  treatment,  he  shall  issue  what  is  called  a  ( commission  in 
lunacy '  (the  form  thereof  being  prescribed)  to  two  physicians,  styled 
'  examiners  in  lunacy.'  This  section  permits  the  filing  of  an  informa- 
tion not  even  sworn  to  by  anybody.  That  it  has  opened  the  door  to 
wrong  and  injustice  —  to  the  making  of  very  serious  and  unwarranted 
charges  against  others  by  wholly  irresponsible  and  evil-minded  persons  — 
is  evident,  although  the  method  of  instituting  the  proceedings  does  not 
affect  the  validity^  of  the  act.  The  commission  directs  the  two  physicians 
designated,  who,  under  section  18,  must  now  possess  certain  qualifica- 
tions, to  *  examine  '  the  alleged  lunatic,  and  certify  to  the  probate  judge 
or  court  commissioner,  within  one  day  after  their  examination,  the 
result  thereof,  with  their  recommendation  as  to  the  special  action  neces- 
sary to  be  taken.  The  form  of  this  certificate  and  recommendation  is 
laid  down  In  section  20.  This  certificate  must  be  duly  sworn  to  or 
affirmed  before  the  officer  issuing  the  commission.  Section  21.  If 
(section  19)  the  examiners  certify  that  the  person  examined  is  sane,  the 
case  shall  be  dismissed.  If  they  disagree,  the  officer  shall  call  other 
examiners,  or  take  further  testimony.  If  they  certify  the  person  to  be 
insane,  and  a  proper  subject  for  commitment,  for  any  of  the  reasons 
specified  in  section  17,  it  is  made  the  duty  of  the  officer  to  visit  the 
§  45 


THE   CONFINEMENT   OF   THE   INSANE.  133 

courts  have  assumed  the  power,  by  the  appointment  of 
guardians  or  committees,  to  take  charge  of  and  to  admin- 
alleged  insane  person,  or  to  require  him  to  be  brought  into  court;  '  but 
he  shall  cause  him  to  be  fully  informed  of  the  proceedings  being  taken 
against  him.'  If  the  officer  deems  it  advisable,  he  may  call  other 
examiners,  or  take  further  testimony,  and  in  all  cases,  '  before  issuing  a 
warrant  of  commitment,'  the  county  attorney  shall  be  informed,  and  it 
is  made  his  duty  to  take  such  steps  as  are  deemed  necessary  to  protect 
the  rights  of  such  person.  If  satisfied  that  the  person  is  insane,  and 
that  the  reason  for  his  commitment  is  sufficient,  under  the  provisions  of 
the  act,  the  probate  judge  or  the  court  commissioner  approves  the  cer- 
tificate of  the  examiners,  and  issues  an  order  or  warrant  in  duplicate, 
committing  him  to  the  custody  of  the  superintendent  of  one  of  the  State 
hospitals,  or  to  the  superintendent  or  keeper  of  any  private  hospital  or 
institution  for  the  insane,  -which,  under  the  same  law,  has  been  duly 
licensed.  This  order  or  warrant  may  be  executed  by  the  sheriff  or  by  a 
private  individual,  and  through  it  the  person  named  therein  is  placed  in 
the  custody  of  the  superintendent  or  keeper  to  whom  it  may  have  been 
directed.  There  are  some  other  provisions  in  respect  to  these  commit- 
ments, but  they  have  no  bearing  on  the  questions  now  before  us,  and 
we  now  reach  a  consideration  of  the  controlling  provisions  of  the 
statute.  The  commission  issues  to  the  examiners,  and  they  are  author- 
ized and  directed  to  '  examine  '  the  alleged  lunatic.  Their  examination 
is  not  made  under  oath.  It  may  be  formal  or  informal,  as  they  choose, 
and  the  person  under  examination  may  not  have  the  slightest  idea  that 
he  is  the  subject  of  inquiry  or  investigation.  The  examination  may  be 
at  any  place  where  the  subject  can  be  found,  or  at  a  place  convenient 
for  the  examiners.  It  may  be  public  or  private,  and,  judging  from  the 
questions  found  in  the  form  to  be  answered  by  the  examiners,  it  may 
consist  simply  in  observing  the  alleged  lunatic,  and  in  making  inquiries 
of  him  or  of  his  acquaintances,  or,  for  that  matter,  accepting  common 
street  gossip.  *  *  *  When  this  examination,  of  which  the  subject 
need  not  be  informed,  and  in  which  he  takes  no  part,  is  completed,  the 
examiners  are  required  to  make  a  verified  written  report  and  recom- 
mendation, and  on  this  the  officer  may  commit  without  any  other  or 
further  act,  except  that  he  must  see  the  subject,  either  in  or  out  of 
court,  informing  him  fully  of  the  proceedings,  and  must  also  notify  the 
county  attorney  of  what  is  going  on.  Not  until  after  the  examination, 
report,  and  recommendation,  upon  which  the  officer  may  commit,  if  he 
so  chooses,  need  there  be  any  notice  whatsoever  to  the  person  charged 
with  being  a  proper  subject  for  the  insane  asylum,  nor  need  the  county 
attorney  be  advised  of  the  proceeding.  If  personal  rights  are  of  any 
consequence,  and  if  they  need  protection  at  any  time,  such  notice  should 
precede  the  examination,  not  follow  it.  But,  aside  from  this  serious 
defect  in  the  law,  it  will  be  seen  that  there  is  no  provision  which 

§  45 


134  CONTROL   OF   DANGEROUS    CLASSES. 

ister  the  estates  of  such  persons.  The  power  of  the 
courts,  to  exercise  this  control  of  the  property  of  a  lunatic, 
cannot  be  seriously  or  successfully  contested.1 

Generally,  the  asylums  are  State  institutions;  but  private 
asylums  are  still  permitted  under  the  supervision  of  the 
State  authorities,  and  subject  to  the  regulations,  prescribed 
by  law,  as  to  the  character  and  furnishings  of  the  buildings, 
the  provisions  for  the  care  and  custody  of  the  patients, 
and  the  inspection  of  the  establishments  by  the  Commis- 

assures  to  the  accused  a  trial  at  any  time,  either  before  or  after  notice, 
under  the  forms  of  law;  no  provision  which  guaranties  to  him  a  judicial 
investigation  and  a  determination  as  to  his  sanity.  The  officer  before 
whom  the  inquiry  is  pending  is  nowhere  required  to  conduct  his  exam- 
ination with  the  least  regard  to  the  rights  of  the  person  charged  with 
being  insane, —  his  right  to  exercise  his  faculties  without  unwarranted 
restraint,  and  to  follow  any  lawful  avocation  for  the  support  of  life. 
Nor  is  the  officer  obliged  to  hear  a  particle  of  testimony,  although  he 
is  at  liberty  so  to  do.  The  accused  or  the  county  attorney  might  appear 
before  him  with  an  army  of  volunteer  witnesses;  but  if  their  testimony 
was  received  or  heard,  or  if  there  was  the  slightest  approach  to  a  trial, 
it  would  be  through  the  grace  of  the  officer,  not  as  a  matter  of  right 
to  the  person  whose  personal  liberty  is  jeopardized  by  the  proceeding. 
We  are  not  speaking  of  what  every  honorable  and  humane  officer  would 
do  when  a  case  was  before  him,  but  of  what  the  statute  will  permit  an 
officer  to  do.  Further  examination  of  this  enactment  need  not  be  made, 
for  enough  has  been  said  to  establish  its  invalidity,  and  to  indicate  what 
outrages  might  be  perpetrated  under  it.  The  objection  to  such  a  pro- 
ceeding as  that  authorized  by  this  statute  does  not  lie  in  the  fact  that 
the  person  named  may  be  restrained  of  his  liberty,  but  in  allowing  it  to 
be  done  without  first  having  a  judicial  investigation  to  ascertain  whether 
the  charges  made  against  him  are  true;  not  in  committing  him  to  the 
hospital,  but  in  doing  it  without  first  giving  him  an  opportunity  to  be 
heard.  We  are  compelled  to  the  conclusion  that  the  enactment  of  the 
sections  referred  to  is  unconstitutional,  because  they  allow  and  sanction 
a  denial  of  the  protection  of  the  law,  and  the  deprivation  of  personal 
liberty  without  due  process  of  law." 

1  But  see  Rider  v.  Regan,  114  Gal.  667.  In  this  case,  the  statute 
authorized,  in  the  event  of  the  hopeless  insanity  of  husband  or  wife, 
the  sane  spouse,  on  the  order  of  the  probate  court,  after  due  notice  to 
the  nearest  relative  of  the  insane  person,  to  sell  or  mortgage  the  home- 
stead. The  statute  was  declared  to  be  constitutional,  and  not  a  taking 
of  property  without  due  process  of  law. 

§  45 


PUNISHMENT   OF   THE    CRIMINAL    INSANE.  135 

sioners  in  Lunacy  or  other  officials,  who  are  charged  with 
the  supervision  of  the  asylums  and  the  care  of  the  insane. 
Indeed,  in  one  California  case,  the  right  to  maintain  a 
private  asylum  for  the  insane  was  recognized  as  protected 
by  constitutional  limitations  from  unreasonable  and  arbi- 
trary regulations.1 

§  46.  Control  of  the  insane  in  the  asylum.  —  Another 
important  question  is,  how  far  the  keepers  of  an  insane 
person  may  inflict  punishment  for  the  purpose  of  control. 
When  one  is  confined  in  an  asylum,  on  account  of  insanity, 
the  very  mental  helplessness  would  prompt  a  humanitarian 
method  of  treatment,  as  the  best  mode  of  effecting  a  cure, 
and  the  keepers  should  be  severely  punished  for  every  act 
of  cruelty,  of  whatever  nature  it  may  be.  But  still  every 
one  will  recognize  the  necessity  at  times  for  the  infliction 
of  punishment,  not  only  for  the  proper  maintenance  of 
order  and  good  government  in  the  asylum,  but  also  for  the 
good  of  the  inmates.  Because  one  is  insane,  it  does  not 
necessarily  follow  that  he  is  not  influenced  in  his  actions 
by  the  hope  of  reward  and  the  fear  of  punishment,  and, 
when  the  infliction  of  punishment  is  necessary,  it  is  justi- 
fiable. But  there  is  so  great  an  opportunity  for  cruel 
treatment,  without  any  means  of  redress  or  prevention, 
that  the  most  stringent  rules  for  the  government  and 
inspection  of  asylums  should  be  established  and  enforced. 
But  within  these  limitations  any  mode  of  reasonable  pun- 
ishment, even  corporal  punishment,  is  probably  justifiable 
on  the  plea  of  necessity. 

§  47.  Punishment  of  the  criminal  insane.  —  It  is  prob- 
ably the  rule  of  law  in  every  civilized  country,  that  no  in- 
sane man  can  be  guilty  of  a  crime,  and  hence  can  not  be 
punished  for  what  would  otherwise  be  a  crime.  The  ground 
for  this  exception  to  criminal  responsibility  is,  that  there 

1  Ex  parte  Whitwell,  98  Cal.  273. 

§   47 


136  CONTROL   OF   DANGEROUS     CLASSES. 

must  be  a  criminal  intent,  in  order  that  the  act  may  consti- 
tute a  crime,  and  that  an  insane  person  cannot  do  an  in- 
tentional wrong.  Insanity,  when  it  is  proven  to  have 
existed  at  the  time  when  the  offense  was  committed,  con- 
stitutes a  good  defense,  and  the  defendant  is  entitled  to 
an  acquittal.  If  the  person  is  still  insane,  he  can  be  con- 
fined in  an  asylum,  until  his  mental  health  is  restored,  when 
he  will  be  entitled  to  his  release,  like  any  other  insane  per- 
son. In  some  of  the  States,  a  verdict  of  acquittal  on  the 
ground  of  insanity,  in  a  criminal  prosecution,  raises  a  prima 
facie  presumption  of  insanity  at  the  time  of  acquittal,  which 
will  authorize  his  commitment  to  an  asylum,  without  fur- 
ther judicial  investigation.  Other  State  statutes  provide 
for  his  detention,  until  it  can  be  ascertained  by  a  special 
examination  whether  the  insanity  still  continues.  But  as 
soon  as  it  is  made  plain  that  his  reason  is  restored,  he  is 
entitled  to  his  liberty.  If  his  confinement  was  intention- 
ally continued  after  his  restoration  to  reason,  it  would 
practically  be  a  punishment  for  the  offense  or  wrong.  Mr. 
Cooley  says:  "  It  is  not  possible  constitutionally  to  provide 
that  one  shall  be  imprisoned  as  an  insane  person,  who  can 
show  that  he  is  not  insane  at  all."  l  This  is  very  true,  but 
I  will  attempt  to  show  that  there  is  no  constitutional  ob- 
jection to  the  confinement  of  the  criminal  insane  after 
restoration  to  sanity,  as  a  punishment  for  the  offense  which 
was  committed  under  the  influence  of  insanity.  The  chief 
objection  to  be  met  in  the  argument  in  favor  of  the  pun- 
ishment of  insane  persons  for  the  crime  or  wrong  which 
they  have  committed,  lies  in  the  commonly  accepted  doc- 
trine, that  a  criminal  intent,  which  an  insane  person  is  not 
capable  of  harboring,  constitutes  the  essential  element  of  a 
crime.  Without  the  intent  to  do  wrong  there  can  be  no 
crime.  But  that  is  merely  an  assumption,  which  rests  upon 
a  fallacy  in  respect  to  the  grounds  upon  which  the  State 

1  Underwood  v.  People,  32  Mich.  1 ;  Cooley  on  Torts,  178,  n.  2. 
§   47 


PUNISHMENT   OF   THE   CRIMINAL   INSANE.  137 

punishes  for  crime,  and  which,  as  soon  as  it  is  recognized 
as  a  controlling  principle,  is  practically  abrogated  by  divid- 
ing criminal  intent  into  actual  and  presumed.  It  is  found 
on  applying  the  rule  to  the  ordinary  experiences  of  life, 
that  it  does  not  fulfill  all  the  demands  of  society  ;  for  a  strict 
adherence  to  the  principle  would  exclude  from  the  list  of 
crimes  very  many  offenses,  which  the  general  welfare  re- 
quires to  be  punished.  A  man,  carried  away  by  a  sudden 
heat  of  passion,  slays  another.  The  provocation  enabled 
the  animal  passions  in  him  to  fetter  and  blind  the  reason, 
and  without  any  exercise  of  will,  if  by  will  we  mean  a 
rational  determination,  these  passions,  differing  only  in  de- 
gree and  duration  from  the  irresistible  impulse  of  insanity, 
urged  him  on  to  the  commission  of  an  act,  which  no  one  so 
bitterly  regrets  as  he  does  himself,  after  his  mental  equi- 
librium has  been  restored.  Where  is  the  criminal  intent  in 
most  cases  of  manslaughter?  We  are  told  that  the  law  will 
presume  an  intent  from  the  unlawful  act. 

A  man  becomes  intoxicated  with  drink,  and  thus  bereft 
of  his  reason  he  commits  a  crime.  Momentarily  he  is  as 
much  a  non  compos  mentis  as  the  permanently  insane.  But 
he  is  neverthless  punished  for  his  wrongful  act ;  and  we  are 
told,  in  response  to  our  inquiry  after  the  criminal  intent, 
that  the  law  will  again  presume  it  from  the  act;  for  by 
intoxication  he  has  voluntarily  deprived  himself  of  his 
reasoning  faculties,  and  can  not  be  permitted  to  prove  his 
drunkenness,  in  order  to  claim  exemption  from  criminal 
responsibility.  A  man  handles  a  fire-arm  or  some  other 
dangerous  machine  or  implement  with  such  gross  negligence 
that  the  lives  of  all  around  are  endangered,  and  one  or  more 
are  killed.  The  law,  at  least  in  some  of  the  States,  makes 
the  homicide  a  crime,  and  punishes  it  as  one  grade  of  man- 
slaughter, and  very  rightly.  But  where  is  the  criminal 
intent?  By  the  very  description  of  the  act,  all  criminal 
intent  is  necessarily  excluded.  It  is  negligence,  which  is 
punished  as  a  crime. 

§  47 


138  CONTROL    OF    DANGEROUS    CLASSES. 

Now  these  cases  of  presumed  intent  are  recognized  as 
exceptions  to  the  rule,  which  requires  an  actual  intent  to  do 
wrong  in  order  to  constitute  a  crime,  because  it  is  felt  that 
something  in  the  way  of  punishment  must  be  inflicted  to 
prevent  the  too  frequent  occurrence  of  such  wrongs,  even 
though  there  is  involved  in  the  commission  of  them  no 
willful  or  intentional  infraction  of  right. 

The  idea,  that  the  intent  was  a  necessary  element  of  a 
crime,  was  derived  from  the  conception  of  a  wrong  in  the 
realms  of  ethics  and  religion,  and  is  but  an  outcome  of  the 
doctrine  of  free  will.  When  a  man  has  the  power  to  dis- 
tinguish and  choose  between  right  and  wrong,  and  inten- 
tionally does  a  wrong  thing,  he  is  then  guilty  of  immorality, 
and  if  the  act  is  forbidden  by  law,  of  a  crime ;  and  punish- 
ment ought  to  follow  as  a  just  retribution  for  the  wrongful 
act.  But  if  a  man  cannot,  from  any  uncontrollable  cause, 
distinguish  between  right  and  wrong,  or  if  the  act  is  an 
accident,  and  he  does  harm  to  his  neighbor,  not  having 
rationally  determined  to  do  a  thing  which  he  knew  to  be 
wrong,  he  is  not  guilty  of  a  moral  wrong,  nor  of  a  crime. 
If  the  human  punishment  of  crimes  rested  upon  the  same 
grounds,  and  proceeded  upon  the  same  principles,  on 
which,  as  we  are  told,  the  God  of  the  Universe  metes 
out  a  just  retribution  for  the  infractions  of  His  laws, 
then  clearly  there  can  be  no  punishment  of  wrongful 
acts,  as  crimes,  where  there  is  no  moral  responsibility. 
But  the  punishment  of  crimes  does  not  rest  upon  the  same 
grounds  and  principles.  The  human  infliction  of  punish- 
ment is  an  exercise  of  police  power,  and  there  is  no 
better  settled  rule  than  that  the  police  power  of  a  State 
must  be  confined  to  those  remedies  and  regulations  which 
the  safety,  or  at  least  the  welfare,  of  the  public  de- 
mands. We  punish  crimes,  not  because  the  criminals 
deserve  punishment,  but  in  order  to  prevent  the  further 
commission  of  the  crime  by  the  same  persons  and  by 
others,  by  creating  the  fear  of  punishment,  as  the  con- 
§  47 


PUNISHMENT   OF   THE    CRIMINAL    INSANE.  139 

sequence  of  the  wrongful  act.  A  man,  laboring  under 
an  insane  propensity  to  kill  his  fellowman,  is  as  dan- 
gerous, indeed  he  is  more  dangerous,  than  the  man 
who,  for  gain,  or  under  the  influence  of  his  aroused 
passions,  is  likely  to  kill  another.  The  insane  person  is 
more  dangerous,  because  the  same  influences  are  not  at 
work  on  him,  as  would  have  weight  with  a  rational,  but  evil 
disposed  person.  And  this  circumstance  would  no  doubt 
require  special  and  peculiar  regulation  for  the  punishment 
of  the  insane,  in  order  that  it  may  serve  as  a  protection  to 
the  public,  and  a  restraint  upon  the  harmful  actions  of  the 
lunatic.  If,  therefore,  the  protection  to  the  public  be  the 
real  object  of  the  legal  punishment  of  crimes,  it  would  be  as 
lawful  to  punish  an  insane  person  for  his  wrongful  acts  as 
one  in  the  full  possession  of  his  mental  faculties.  The 
lunatic  can  be  influenced  by  the  hope  of  reward  and  the 
fear  of  punishment,  and  he  can  be  prevented  in  large  meas- 
ure from  doing  wrong  by  subjecting  him  to  the  fear  of 
punishment.  This  is  the  principle  upon  which  the  lunatics 
are  controlled  in  the  asylums.  It  would  be  no  more  uncon- 
stitutional to  punish  a  lunatic  outside  of  the  asylum. 

It  is  not  likely  that  this  view  of  the  relation  of  the  insane 
to  the  criminal  law  will  be  adopted  at  an  early  day,  if  at 
all ;  for  the  moral  aspect  of  punishment  has  too  strong  a 
hold  upon  the  public.1  But  if  its  adoption  were  possible,  it 
would  reduce  to  a  large  extent  the  number  of  crimes  which 
are  alleged  to  have  been  committed  under  the  influence  of 
an  insanity,  which  has  never  been  manifested  before  the 
wrongful  occurrence,  and  has,  immediately  thereafter,  en- 
tirely disappeared. 

1  So  strong  an  influence  has  this  theory  over  the  public  mind  that  in  a 
late  number  of  the  North  American  Review,  a  writer  attempts  to  prove 
the  "  certainty  of  endless  punishment "  for  the  violation  of  God's  laws, 
by  showing  inter  alia  that  even  human  laws  are  retributive  and  not  cor- 
rective, that  a  criminal  is  punished  for  the  vindication  of  a  broken  law, 
and  not  that  crime  may  be  prevented.  See  vol.  140,  p.  154. 

§   47 


140  CONTROL    OF   DANGEROUS    CLASSES. 

§  48.   Confinement  of  habitual  drunkards.  —  It  is  the 

policy  of  some  States,  notably  New  York,  to  establish  asy- 
lums for  the  inebriate,  where  habitual  drunkards  are  re- 
ceivedand  subjected  to  a  course  of  medical  treatment,  which 
is  calculated  to  effect  a  cure  of  the  disease  of  drinking,  as 
it  is  claimed  to  be.  A  large  part  of  human  suffering  is  the 
almost  direct  result  of  drunkenness,  and  it  is  certainly  to  the 
interest  of  society  to  reduce  this  evil  as  much  as  possible. 
The  establishment  and  maintenance  of  inebriate  asylums 
can,  therefore,  be  lawfully  undertaken  by  the  State.  The 
only  difficult  constitutional  question,  arising  in  this  connec- 
tion, refers  to  the  extent  to  which  the  State  may  employ 
force  in  subjecting  the  drunkard  to  the  correcting  influences 
of  the  asylum.  Voluntary  patients  can,  of  course,  be  re- 
ceived and  retained  as  long  as  they  consent  to  remain. 
But  they  cannot  be  compelled  to  remain  any  longer  than 
they  desire,  even  though  they  have,  upon  entering  the 
asylum,  signed  an  agreement  to  remain  for  a  specified 
time,  and  the  time  has  not  expired.1  The  statutes  might 
authorize  the  involuntary  commitment  of  inebriates,  who 
are  so  lost  to  self-control  that  the  influence  of  intoxicating 
liquor  amounts  to  a  species  of  insanity,  called  dipsomania.2 
But  if  the  habit  of  drunkenness  is  not  so  great  as  to  deprive 
the  individual  of  his  rational  faculties,  the  State  has  no 
right  to  commit  him  to  the  asylum  for  the  purpose  of  effect- 
ing a  reform,  no  more  than  the  State  is  authorized  to 
forcibly  subject  to  medical  and  surgical  treatment  one  who 
is  suffering  from  some  innocuous  disease.  If  the  individual 
is  rational,  the  only  case  in  which  forcible  restraint  would 
be  justifiable,  would  be  where  the  habit  of  drunkenness, 
combined  with  ungovernable  fiery  passions,  makes  the  in- 
dividual a  source  of  imminent  danger.  Every  community 
has  at  least  one  such  character,  a  passionate  drunkard,  who 

r 

1  Matter  of  Baker,  29  How.  Pr.  486.  t 

a  Matter  of  James,  30  How.  Pr.  446. 

§    48 


CONFINEMENT   OF    HABITUAL   DRUNKARDS.  141 

terrorizes  over  wife  and  children,  subjects  them  to  cruel 
treatment,  and  is  a  frequent  cause  of  street  brawls,  con- 
stantly breaking  the  peace  and  threatening  the  quiet  and 
safety  of  law-abiding  citizens.  The  right  of  the  State  to 
commit  such  a  person  to  the  inebriate  asylum,  even  where 
there  has  been  no  overt  violation  of  the  law,  cannot  be 
questioned.  A  man  may  be  said  to  have  a  natural  right  to 
drink  intoxicating  liquor  as  much  as  he  pleases,  provided 
that  in  doing  so  he  does  not  do  or  threaten  positive  harm 
to  others.1  Where,  from  a  combination  of  facts  or  circum- 
stances, his  drunkenness  does  directly  produce  injury  to 
others,  —  whether  they  be  near  relatives,  wife  and  chil- 
dren, or  the  community  at  large,  — the  State  can  interfere 
for  the  protection  of  such  as  are  in  danger  of  harm,  and 
forcibly  commit  the  drunkard  to  the  inebriate  asylum.2  It 
may  be  said  that  any  form  of  drunkenness  produces  harm 
to  others,  in  that  it  is  calculated  to  reduce  the  individual  to 
pauperism  and  throw  upon  the  public  the  burden  of  sup- 
porting him  and  his  family.  But  that  is  not  a  proximate 
consequence  of  the  act,  and  no  more  makes  the  act  of 
drunkenness  a  wrong  against  the  public  or  the  family  than 
would  be  habits  of  improvidence  and  extravagance.  For  a 
poor  man,  intoxication  is  an  extravagant  habit.  The  State 
can  only  interfere  when  the  injury  to  others  is  a  proximate 

1  But  see  Com.  v.  Morrissey,  157  Mass.  471. 

2  In  State  v.  Ryan,  70  Wis.  676,  the  court,  quoting  this  section  of  this 
book  with  approval,  holds  that  a  statute  of  Wisconsin  —  which  provides 
that    "any   person   charged  with  being  a  common  drunkard  shall  be 
arrested  and  brought  before  a  judge  for  trial,  and  if  convicted  shall  be 
sentenced  to  confinement  in  an  asylum  "  —  is  unconstitutional,  because 
its  enforcement  deprives  a  person  of  his  liberty  without  due  process  of 
law.    In  Wisconsin  Keeley  Institute  Co.  v.  Milwaukee  County,  95  Wis.  153, 
the  same  court  held  that  the  statutory  provision  for  the  treatment  of 
habitual  drunkards  in  private  institutions  at  the  expense  of  the  counties, 
where  the  drunkard  has  not  the  means  of  paying  for  the  treatment,  was 
unconstitutional,  in  that  it  imposed  upon  the  counties  a  tax  for  the  ben- 
efit of  private  individuals  who  were  not  the  legitimate  objects  of  public 
charity. 

§   48 


142  CONTROL    OF    DANGEROUS    CLASSES. 

and  direct  result  of  the  act  of  drunkenness,  as,  for  example, 
where  the  drunkard  was  of  a  passionate  nature,  and  was  in 
the  habit  of  beating  those  about  him  while  in  this  drunken 
frenzy.  This  is  a  direct  and  proximate  consequence,  and 
the  liability  to  this  injury  would  be  sufficient  ground  for 
the  interference  of  the  State.  But  in  all  of  these  cases  of 
forcible  restraint  of  inebriates,  the  restraint  is  unlawful, 
except  temporarily  to  avert  a  threatening  injury  to  others, 
unless  it  rests  upon  the  judgment  of  a  court,  rendered  after 
a  full  hearing  of  the  cause.  The  commitment  on  ex  parte 
affidavits  would  be  in  violation  of  the  general  constitutional 
provision,  that  no  man  can  be  deprived  of  his  liberty, 
except  by  due  process  of  law.1 

§  49.  Police  control  of  vagrants.  — The  vagrant  has  been 
very  appropriately  described  as  the  chrysalis  of  every 
species  of  criminal.  A  wanderer  through  the  land,  with- 
out home  ties,  idle,  and  without  apparent  means  of  support, 
what  but  criminality  is  to  be  expected  from  such  a  person? 
If  vagrancy  could  be  successfully  combated,  if  every  one 
was  engaged  in  some  lawful  calling,  the  infractions  of  the 
law  would  be  reduced  to  a  surprisingly  small  number ;  and 
it  is  not  to  be  wondered,  at  that  an  effort  is  so  generally 
made  to  suppress  vagrancy.  The  remedy  is  purely  statu- 
tory, as  it  was  not  an  offense  against  the  common  law. 
The  statutes  are  usually  very  explicit  as  to  what  constitutes 
vagrancy,  and  a  summary  proceeding  for  conviction,  before 
a  magistrate  and  without  a  jury,  is  usually  provided,  and 
the  ordinary  punishment  is  imprisonment  in  the  county 
jail. 

The  provisions  of  the  State  statutes  on  the  subject  bear  a 
very  close  resemblance,  and  usually  set  forth  the  same  acts 
as  falling  within  the  definition  of  vagrancy.  Webster  de- 
fines a  vagrant  or  vagabond  to  be  "  one  who  wanders  from 

1  Matter  of  Janes,  30  How.  Pr.  446. 
§   49 


POLICE  CONTROL  OF  VAGRANTS.          143 

town  to  town,  or  place  to  place,  having  no  certain  dwelling, 
or  not  abiding  in  it,  and  usually  without  the  means  of  liveli- 
hood." In  the  old  English  statutes,  they  are  described  as 
being  "  such  as  wake  on  the  night,  and  sleep  on  the  day, 
and  haunt  customable  taverns  and  ale-houses,  and  routs 
about ;  and  no  man  wot  from  whence  they  come,  nor  whither 
they  go."  The  English,  and  some  of  the  American  stat- 
utes, have  stated  very  minutely  what  offenses  are  to  be  in- 
cluded under  vagrancy.  But,  apart  from  those  acts  which 
would  fall  precisely  under  Mr.  Webster's  definition,  the 
acts  enumerated  in  the  statutes  in  themselves  constitute  dis- 
tinct offenses  against  public  peace,  morality,  and  decency, 
and  should  not  be  classified  with  vagrancy,  properly  so- 
called.  Thus,  for  example,  an  indecent  exposure  of  one's 
person  on  the  highway,  a  boisterous  and  disorderly  parade 
of  one's  self  by  a  common  prostitute,  pretending  to  tell 
fortunes  and  practicing  other  deceptions  upon  the  public, 
and  other  like  acts,  are  distinct  offenses  against  the  public, 
and  the  only  apparent  object  of  incorporating  them  into 
the  vagrant  act  is  to  secure  convictions  of  these  offenses 
by  the  summary  proceeding  created  by  the  act.1  Mr. 
Webster's  definition  will  therefore  include  all  acts  that  can 
legitimately  come  within  the  meaning  of  the  word  vagrancy. 
What  is  the  tortious  element  in  the  act  of  vagrancy?  Is 
it  the  act  of  listlessly  wandering  about  the  country,  in 
America  called  "tramping?"  Or  is  it  idleness  without 
visible  means  of  support?  Or  is  it  both  combined?  Of 
course,  the  language  of  the  particular  statute,  under  which 
the  proceeding  for  conviction  is  instituted,  will  determine 
the  precise  offense  in  that  special  case,  but  the  offense  is 
usually  defined  as  above.  If  one  does  anything  which  di- 
rectly produces  an  injury  to  the  community,  it  is  to  be  sup- 
posed that  he  can  be  prevented  by  appropriate  legislation. 
While  an  idler  running  about  the  country  is  injurious  to  the 

1  See  2  Broom  &  Hadley's  Com.  467,  468. 

§    49 


144  CONTROL   OF   DANGEROUS   CLASSES. 

State  indirectly,  in  that  such  a  person  is  not  a  producer, 
still  it  would  not  be  claimed  that  he  was  thus  inflicting  so 
direct  an  injury  upon  the  community  as  to  subject  him  to 
the  possibility  of  punishment.  A  man  has  a  legal  right 
to  live  a  life  of  absolute  idleness,  if  he  chooses,  provided 
he  does  not,  in  so  living,  violate  some  clear  and  well  de- 
fined duty  to  the  State.  To  produce  something  is  not  one 
of  those  duties,  nor  is  it  to  have  a  fixed  permanent  home. 
But  it  is  a  duty  of  the  individual  so  to  conduct  himself 
that  he  will  be  able  to  take  care  of  himself,  and  prevent  his 
becoming  a  public  burden.  If,  therefore,  he  has  sufficient 
means  of  support,  a  man  may  spend  his  whole  life  in  idle- 
ness and  wandering  from  place  to  place.  The  gist  of  the 
offense,  therefore,  is  the  doing  of  these  things,  when  one  has 
no  visible  means  of  support,  thus  threatening  to  become  a 
public  burden.  The  statutes  generally  make  use  of  the 
words,  **  without  visible  means  of  support."  What  is 
meant  by  "visible  means?"  Is  it  a  man's  duty  to  the 
public  to  make  his  means  of  support  visible,  or  else  subject 
himself  to  summary  punishment?  Is  it  not  rather  the  duty 
of  the  State  to  show  affirmatively  that  this  "  tramp  "  is 
without  means  of  support,  and  not  simply  prove  that  his 
means  of  support  are  not  apparent?  Such  would  be  a  fair 
deduction  by  analogy 'from  the  requirements  of  the  law  in 
respect  to  other  offenses.  But  the  very  difficulty,  in  prov- 
ing affirmatively  that  a  man  has  no  means  of  support,  is,  no 
doubt,  an  all-sufficient  reason  for  this  departure  from  the 
general  rule  in  respect  to  the  burden  of  proof,  and  for  con- 
fining the  duty  of  the  State  to  the  proof  that  the  person 
charged  with  vagrancy  is  without  visible  means  of  support, 
and  throwing  upon  the  individual  the  burden  of  proving 
his  ability  to  provide  for  his  wants. 

An  equally  difficult  question  is,  what  amount  and  kind 

of  evidence  will  be  sufficient  to  establish  a  prima  facie  case 

of  invisibility  of  the  means  of  support?     If  a  man  is  found 

supporting  himself  in  his  journeyings  by  means  of  begging, 

§  49 


POLICE  CONTROL  OF  VAGRANTS.          145 

no  doubt  that  would  be  deemed  sufficient  evidence  of  not 
having  proper  means  of  support.  But  suppose  it  cannot  be 
proven  that  be  begs.  Will  the  tattered  and  otherwise  dilap- 
idated condition  of  his  attire  be  considered  evidence  of  a 
want  of  means?  The  man  may  be  a  miser,  possessed  of 
abundant  means,  which  he  hoards  to  his  own  injury.  Has 
he  not  a  right  to  be  miserly,  and  to  wear  old  clothes  as  long 
as  he  conforms  to  the  requirement  of  decency,  and  may  he 
not,  thus  clad,  indulge  in  a  desire  to  wander  from  place  to 
place?  Most  certainly.  He  is  harming  no  one,  provided 
he  pays  for  all  that  he  gets,  and  it  would  be  a  plain  violation 
of  his  right  of  liberty,  if  he  were  arrested  on  a  charge  of 
vagrancy,  because  he  did  not  choose  to  expend  his  means  in 
the  purchase  of  fine  linen.  Or  will  the  lack  of  money  be 
evidence  that  he  has  no  visible  means  of  support?  In  the 
first  place  how  can  that  be  ascertained?  Has  the  State  a 
right  to  search  a  man's  pockets  in  order  to  confirm  a  sus- 
picion that  he  has  DO  means  of  support?  And  even  if  such 
a  search  was  lawful,  or  the  fact  that  the  defendant  was 
without  money  was  established  in  some  other  way,  the  lack 
of  money  would  be  no  absolute  proof  of  a  want  of  means. 
Again,  a  man  may  have  plenty  of  money  in  his  pocket, 
and  yet  have  no  lawful  means  of  support.  And  if  he  is 
strongly  suspected  of  being  a  criminal,  he  is  very  likely  to 
be  arrested  as  a  vagrant.  Indeed,  the  vagrant  act  is 
specially  intended  to  reach  this  class  of  idlers,  as  a  means  of 
controlling  them  and  ridding  the  country  of  their  injurious 
presence.  But  there  is  no  crime  charged  against  them. 
They  are  usually  arrested  on  mere  suspicion  of  being, 
either  concerned  in  a  crime  recently  committed,  or  then 
engaged  in  the  commission  of  some  crime.  That  suspicion 
may  rest  upon  former  conviction  for  crime,  or  upon  the 
presumptions  of  association,  or  the  police  officer  may  rely 
upon  his  ability  to  trace  the  lines  of  criminality  upon  the 
face  of  the  supposed  offender.  But  in  every  case,  where 
there  is  no  overt  criminal  act,  an  arrest  for  vagrancy  is 

10  §  49 


146  CONTROL    OF   DANGEROUS    CLASSES. 

based  upon  the  suspicion  of  the  officer,  and  it  is  too  often 
unsupported  by  any  reasonably  satisfactory  evidence.  It  is 
true  that  very  few  cases  of  unjust  arrests,  i.  e.,  of  innocent 
persons,  for  vagrancy  occur  in  the  criminal  practice ;  but 
with  this  mode  of  proceeding  it  is  quite  possible  that  such 
may  occur.  Moreover,  the  whole  method  of  proceeding  is 
in  direct  contradiction  of  the  constitutional  provisions  that 
a  man  shall  be  convicted  before  punishment,  after  proof  of 
the  commission  of  a  crime,  by  direct  testimony,  sufficient  to 
rebut  the  presumption  of  innocence,  which  the  law  accords 
to  every  one  charged  with  a  violation  of  its  provisions.  In 
trials  for  vagrancy,  the  entire  process  is  changed,  and  men 
are  convicted  on  not  much  more  than  suspicion,  unless  they 
remove  it,  to  employ  the  language  of  the  English  statute, 
by  "giving  a  good  account  of  themselves."  It  reminds 
one  of  the  police  regulation  of  Germany,  which  provides 
that  upon  the  arrival  of  a  person  at  an  inn  or  boarding- 
house,  the  landlord  is  required  to  report  the  arri/al  to  the 
police,  with  an  account  of  one's  age,  religion,  nationality, 
former  residence,  proposed  length  of  stay,  and  place  of 
destination.  Every  one  is  thus  required  to  "  give  a  good 
account  of  "  himself,  and  the  regulation  is  not  confined  in 
its  operations  to  suspicious  characters.  Whatever  may  be 
the  theoretical  and  technical  objections,  to  which  the 
vagrancy  laws  are  exposed,  and  although  the  arrest  by  mis- 
take of  one  who  did  not  properly  come  under  the  definition 
of  a  vagrant  would  possibly  subject  the  officer  of  the  law  to 
liability  for  false  imprisonment,  the  arrest  is  usually  made 
of  one  who  may,  for  a  number  of  the  statutory  reasons,  be 
charged  with  vagrancy,  and  no  contest  arises  out  of  the 
arrest.  But  if  the  defendant  should  refuse  to  give  testi- 
mony in  defense,  and  ask  for  an  acquittal  on  the  ground 
that  the  State  had  failed  to  establish  a  prima  facie  case 
against  him,  unless  the  statute  provided  that  a  want  of  law- 
ful means  of  support  is  sufficiently  proved  by  facts  which 
otherwise  would  create  a  bare  suspicion  of  impecuniosity, 
§  49 


POLICE  CONTROL  OF  VAGRANTS.  147 

the  defendant  would  be  entitled  to  a  discharge.  Punish- 
ment for  vagrancy  is  constitutional,  provided  the  offense  is 
proven,  and  conviction  secured  in  a  constitutional  manner. 
And  since  the  summary  conviction  deprives  one  of  the 
common-law  right  of  trial  by  jury,  the  prosecutions  should 
and  must  be  kept  strictly  within  the  limitation  of  the 
statute. 

The  constitutionality  of  the  vagrancy  laws  has  been  sus- 
tained by  the  courts,  although  in  none  of  the  cases  does  it 
appear  that  the  court  considered  the  view  of  the  question 
here  presented.  The  discussion  cannot  be  more  fitly  closed 
than  by  the  following  quotation  from  an  opinion  of  Judge 
Sutherland,  of  the  New  York  judiciary  :  "These  statutes 
declaring  a  certain  class  or  description  of  persons  vagrants, 
and  authorizing  their  conviction  and  punishment  as  such, 
a3  well  as  certain  statutes  declaring  a  certain  class  or  de- 
scription of  persons  to  be  disorderly  persons,  and  author- 
izing their  arrest  as  such,  are  in  fact  rather  in  the  nature  of 
public  regulations  to  prevent  crime  and  public  charges  and 
burdens,  than  of  the  nature  of  ordinary  criminal  laws,  pro- 
hibiting and  punishing  an  act  or  acts  as  a  crime  or  crimes. 
If  the  condition  of  a  person  brings  him  within  the  descrip- 
tion of  either  of  the  statutes  declaring  what  persons  shall 
be  esteemed  vagrants,  he  may  be  convicted  and  imprisoned, 
whether  such  a  condition  is  his  misfortune  or  his  fault. 
His  individual  liberty  must  yield  to  the  public  necessity  or 
the  public  good  ;  but  nothing  but  public  necessity  or  the 
public  good  can  justify  these  statutes,  and  the  summary 
conviction  without  a  jury,  in  derogation  of  the  common 
law,  authorized  by  them.  They  are  constitutional,  but 
should  be  construed  strictly  and  executed  carefully  in  favor 
of  the  liberty  of  the  citizen.  Their  description  of  persons 
who  shall  be  deemed  vagrants  is  necessarily  vague  and  un- 
certain, giving  to  the  magistrate  in  their  execution  an 
almost  unchecked  opportunity  for  arbitrary  oppression  or 
careless  cruelty.  The  main  object  or  purpose  of  the  stat- 

5  49 


148  CONTROL    OF   DANGEROUS    CLASSES. 

utes  should  be  kept  constantly  in  view,  and  the  magistrate 
should  be  careful  to  see,  before  convicting,  that  the  person 
charged  with  being  a  vagrant  is  shown,  either  by  his  or  her 
confession,  or  by  competent  testimony,  to  come  exactly 
within  the  description  of  one  of  the  statutes."  l 

A  recent  curious  attempt,  to  regulate  the  criminal  class 
by  the  suppression  of  vagrancy,  was  an  ordinance  of  St. 
Louis,  Missouri,  which  forbade  anyone  **  knowingly  to  as- 
sociate with  persons  having  the  reputation  of  being  thieves, 
burglars,  pickpockets,  pigeon-droppers,  bawds,  prostitutes 
or  lewd  women,  or  gamblers  or  any  other  person,  for  the 
purpose  or  with  the  intent  to  agree,  conspire,  combine  or 
confederate,  first,  to  commit  any  offense,  or  second,  to 
cheat  or  defraud  any  person  of  any  money  or  property," 
etc.  The  ordinance  was  held  to  be  unconstitutional,  in 
that  it  was  an  unlawful  invasion  of  the  right  of  personal 
liberty.  The  court  say  :  "  It  stands  to  reason  that,  if  the 
legislature  may  forbid  one  to  associate  with  certain  classes 
of  persons  of  unsavory  or  malodorous  reputations,  by  the 
same  token  it  may  dictate  who  the  associates  of  any  one 
may  be.  *  *  *  "  We  deny  the  power  of  any  legislative 
body  in  this  country  to  choose  for  our  citizens  who  their 
associates  shall  be.  And  as  to  that  portion  of  the  eighth 
clause  which  uses  the  words  *  for  the  purpose  or  with  the 
intent  to  agree,  conspire,  combine  or  confederate,  first  to 
commit  any  offense,'  etc.,  it  is  quite  enough  to  say  that 
human  laws  and  human  agencies  have  not  yet  arrived  at 
such  a  degree  of  perfection  as  to  be  able,  without  some 
overt  act  done,  to  discern  and  determine  by  what  intent  or 
purpose  the  human  heart  is  actuated.  So  that,  did  we  con- 
cede the  validity  of  the  former  portion  of  the  eighth  clause, 
which  we  do  not,  still  it  would  be  wholly  impracticable  for 
human  laws  to  punish  or  even  to  forbid,  inproper  inten- 

1  People  v.  Forbes,  4  Park.  611.    See,  also,  in  affirmance  of  the  con- 
stitutionality of  vagrant  law,  People  v.  Phillips,  1  Park.  95;  People  t>. 
Gray,  4  Park.  616;  State  v.  Maxey,  1  McMull,  501. 
§   49 


POLICE    REGULATION   OF   MENDICANCY.  149 

tions  or  purposes;  for  with  mere  guilty  intention,  uncon- 
nected with  overt  act  or  outward  manifestation,  the  law  has 
no  concern."  l 

§  50.  Police  regulation  of  mendicancy.  —  Somewhat 
akin  to  the  evil  of  vagrancy,  and  growing  out  of  it,  is  com- 
mon and  public  mendicancy.  The  instincts  of  humanity 
urge  us  to  relieve  our  fellow-creatures  from  actual  suffer- 
ing, even  though  we  fully  recognize  in  the  majority  of  such 
cases  that  the  want  is  the  natural  consequence  of  vices,  or 
the  punishment  which  nature  imposes  for  the  violation  of 
her  laws.  It  would  be  unwise  for  State  regulation  to  pro- 
hibit obedience  to  this  natural  instinct  to  proffer  assistance 
to  suffering  humanity.2  Indeed,  it  would  seem  to  be  the 
absolute  right  of  the  possessors  of  property  to  bestow  it  as 
alms  upon  others,  and  no  rightful  law  can  be  enacted  to 
prohibit  such  a  transfer  of  property.  It  certainly  could 
not  be  enforced.  But  while  we  recognize  the  ennobling 
influence  of  the  practice  of  philanthrohy,  as  well  as  the 
immediate  benefit  enjoyed  by  the  recipient  of  charity,  it 
must  be  conceded  that  unscientific  philanthropy,  more 
especially  when  it  takes  the  form  of  indiscriminate  alms- 
giving, is  highly  injurious  to  the  welfare  of  the  community. 
Beggars  increase  in  number  in  proportion  to  the  means  pro- 
vided for  their  relief.  Simply  providing  for  their  immedi- 
ate wants  will  not  reduce  the  number.  On  the  contrary 
their  number  is  on  the  increase.  State  regulation  of  charity 
is  therefore  necessary,  and  is  certainly  constitutional.  A 
sound  philanthropy  would  call  for  the  support  of  those 
who  cannot  from  mental  or  physical  deficiencies  provide 
themselves  with  the  means  of  subsistence,  and  include  even 
those  who  in  their  old  age  are  exposed  to  want  in  conse- 
quence of  the  lavish  gratification  of  their  vices  and  passions. 

1  Ex    parte    Smith,  135  Mo.  223.     See,  to  the  same  effect,  on  same 
ordinance,  City  of  St.  Louis  v.  Roche,  128  Mo.  541. 

2  The  religious  aspect  of  the  question  is  not  considered  here. 

§  50 


150  CONTROL   OF   DANGEROUS    CLASSES. 

But  all  charity  institutions  should  be  so  conducted  that 
every  one,  coming  in  contact  with  them,  would  be  stimu- 
lated to  work.  Poor-houses  should  not  be  made  too  invit- 
ing in  their  appointments.  After  providing  properly  for 
the  really  helpless,  it  would  then  be  fit  and  proper  for  the 
State  to  prohibit  all  begging  upon  the  streets  and  in  public 
resorts.  Those  who  are  legitimate  subjects  of  charity 
should  be  required  to  apply  to  the  public  authorities.  All 
others  should  be  sent  to  the  jail  or  work-house,  and  com- 
pelled to  work  for  their  daily  bread.  It  i.s  conceded  that 
the  State  cannot  prohibit  the  practice  of  private  philan- 
thropy, but  it  can  prohibit  public  and  professional  begging, 
and,  under  the  vagrant  laws,  punish  those  who  practice  it. 
In  the  New  England  States,  the  English  system  of  making 
paupers  charges  upon  the  towns,  in  which  they  reside,  has 
with  certain  statutory  modifications  been  retained  or  estab- 
lished. One  would  suppose  that  no  one  would  question  the 
right  of  the  legislature  to  modify  its  poor  laws  at  pleasure. 
But  the  doctrine  of  vested  rights  has  been  so  well  grounded 
in  American  Constitutional  Law,  that  in  a  recent  case  in 
Vermont,  it  was  gravely  contended  that  a  pauper  has  a 
vested  right  in  the  existing  statutory  provisions  for  his 
support,  which  could  not  be  changed  by  subsequent  legis- 
lation. But  the  Supreme  Court  of  that  State  has  held 
that  "  a  pauper  has  no  vested  right  in  respect  to  how  or 
where  he  shall  be  supported,  nor  has  a  town  a  vested  right 
to  be  relieved  from  the  charge  of  supporting  any  particular 
pauper."  J 

§  51.   Police    supervision   of    habitual    criminals.  —  A 
very  large  part  of  the  duties  of  the  police  in  all  civilized 

1  Town  of  Crafstboro  v.  Town  of  Greensboro,  66  Vt.  585.  See,  also, 
on  the  New  England  Poor  Laws,  Worcester  v.  East  Montpelier,  61  Vt. 
139;  Lewiston  ».  N.  Yarmouth,  5  Greenl.  66;  Goshen  v.  Richmond,  4 
Allen,  458;  Bridgewater  v.  Plymouth,  97  Mass.  382;  Endicott  v.  Hopkin- 
ton,  125  Mass.  521;  Cambridge  B.  Boston,  130  Mass.  357;  Goshen  v. 
Stonington,  4  Conn.  209  (10  Am.  Dec.  121). 
§  51 


POLICE    SUPERVISION   OF    HABITUAL    CRIMINALS.        151 

countries  is  the  supervision  and  control  of  the  criminal 
classes,  even  when  there  are  no  specific  charges  of  crime 
lodged  against  them.  A  suspicious  character  appears  in 
some  city,  and  is  discovered  by  the  police  detectives.  He 
bears  upon  his  countenance  the  indelible  stamp  of  criminal 
propensity,  and  he  is  arrested.  There  is  no  charge  of  crime 
against  him.  He  may  never  have  committed  a  crime,  but 
he  is  arrested  on  the  charge  of  vagrancy,  and  since  by  the 
ordinary  vagrant  acts  the  burden  is  thrown  upon  the  de- 
fendant to  disprove  the  accusation,  it  is  not  difficult  in  most 
cases  to  fasten  on  him  the  offense  of  vagrancy,  particularly 
as  such  characters  will  usually  prefer  to  plead  guilty,  in 
order  to  avoid,  if  possible,  a  too  critical  examination  into 
their  mode  of  life.  But  to  punish  him  for  vagrancy  is  not 
the  object  of  his  arrest.  The  police  authorities  had,  with 
an  accuracy  of  judgment  only  to  be  acquired  by  a  long 
experience  with  the  criminal  classes,  determined  that  he 
was  a  dangerous  character ;  and  the  magistrate,  in  order  to 
rid  the  town  of  his  presence,  threatens  to  send  him  to  jail 
for  vagrancy  if  he  does  not  leave  the  place  within  twenty- 
four  hours.  In  most  cases,  the  person  thus  summarily  dealt 
with  has  been  already  convicted  of  some  crime,  is  known 
as  a  confirmed  criminal,  and  his  photograph  has  a  place  in 
the  "  rogues'  gallery."  Now,  so  far  as  this  person  has 
been  guilty  of  a  violation  of  the  vagrant  laws,  he  is  no 
doubt  subject  to  arrest  and  can  and  should  be  punished  for 
vagrancy,  in  conformity  with  the  provisions  of  the  statute. 
But  so  far  as  the  police,  above  and  beyond  the  enforcement 
of  the  vagrant  law,  undertake  to  supervise  and  control  the 
actions  of  the  criminal  classes,  except  when  a  specific  crime 
has  been  committed  and  the  offender  is  to  be  arrested 
therefor,  their  action  is  illegal,  and  a  resistance  to  the  con- 
trol thus  exercised  must  lead  to  a  release  and  acquittal  of 
the  offender.  This  is  certainly  true  where  the  control  and 
supervision  of  the  habitual  criminals  are  not  expressly 
authorized  by  statute.  But  in  some  of  our  States,  in  con- 

§  51 


152  CONTROL   OF   DANGEROUS    CLASSES. 

nection  with  the  punishment  of  vagrancy,  provision  is  made 
for  the  punishment  of  any  "  common  street  beggar,  com- 
mon prostitute,  habitual  disturber  of  the  peace,  known 
pick-pockets,  gambler,  burglar,  thief,  watch-stuff er,  ball- 
game  player,  a  person  who  practices  any  trick,  game  or 
device  with  intent  to  swindle,  a  person  who  abuses  his 
family,  and  any  suspicious  person  who  cannot  give  a  reason- 
able account  of  himself."  l  Laws  of  this  character  have 
been  enacted,  and  the  constitutionality  of  them  sustained 
in  Ohio,  Massachusetts,  Maryland,  Pennsylvania  and  Ken- 
tucky.2 The  only  serious  constitutional  objection  to  these 
laws  for  the  punishment  of  habitual  criminals  is  that  they 
provide  a  punishment  for  the  existence  of  a  status  or  con- 
dition, instead  of  for  a  crime  or  wrong  against  society  or 
an  individual.  If  an  individual  has  become  an  habitual 
criminal,  i.  e.,  that  he  has  committed,  and  is  still  commit- 
ting, a  number  of  offenses  against  the  law,  for  each  and 
every  offense  he  may  be  punished,  and  the  punishment  may 
very  properly  be  made  to  increase  with  every  repetition  of 
the  offense.  But  this  person  can  hardly  be  charged  with 
the  crime  of  being  a  common  or  habitual  law-breaker. 
After  meting  out  to  him  the  punishment  that  is  due  to 
his  numerous  breaches  of  the  law,  he  has  paid  the  penalty 

1  Rev.  Stat.  Ohio,  §  2108. 

2  Morgan  v.  Nolte,  37  Ohio  St.  23  (41  Am.  Rep.  485) ;  Blackburn  v. 
State,  50  Ohio  St.  428;  Byers  v.  Commonwealth,  42  Pa.  St.  96;  World 
v.    State,    50    Md.    54;     Commonwealth     ».    Hopkins,    2    Dana,    418. 
In  Commonwealths.    Graves,    155  Mass.    164,    the   court  says:    "In 
punishing  offenses  committed  (the  habitual  criminal  act)  after  Its  pas- 
sage, it  punishes  the  offenders  for  a  criminal  habit  whose  existence 
cannot  be  proved  without  showing  their  voluntary  criminal  act    done 
after  they  are  presumed  to  have  had  knowledge  of  the  statute.     Such  an 
act  is  a  manifestation  of  the  habit,  which  tends  to  establish  and  con- 
firm it,  and  for  which  the  wrong-doer  may  well  be  held  responsible. 
That  statutes  of  this  kind  are  constitutional  is  settled  by  well  considered 
adjudications  of  this  court."    Ross's  Case,  2  Pick.  165;  Com.  v.  Phillips, 
11  Pick.  28;  Plumbly  v.  Com.,  2  Met.  413;  Com.  v.  Hughes',  133  Mass. 
496;  Com.  v.  Marchand,  155  Mass.  8;  Sturtevant  v.  Commonwealth,  158 
Mass.  598. 

§  51 


POLICE    SUPERVISION    OF    HABITUAL    CRIMINALS.         153 

for  his  infractions  of  the  law,  and  stands  before  it  a  free 
man. 

There  can  be  no  doubt  that  constant  wrong-doing  warps 
the  mind,  and  more  or  less  permanently  changes  the  charac- 
ter, producing  a  common  or  habitual  criminal.  But  to  say 
that  the  being  an  habitual  criminal  is  a  punishable  offense, 
is  to  say  that  human  punishment  is  endless,  for  it  ia  an 
attempt  to  punish  a  condition  of  mind  and  character,  which 
only  years  of  patient  and  arduous  struggle  can  obliterate  or 
change.  The  practical  effect  of  such  laws,  when  vigorously 
enforced,  is  to  make  of  such  a  person  an  outlaw,  without 
home  or  country,  driven  from  post  to  post,  for  his  habitual 
criminality  is  an  offense  against  such  laws  of  every  com- 
munity into  which  he  may  go,  it  matters  not  where  the 
offenses  were  committed  which  made  him  an  habitual  crimi- 
nal.1 Even  the  habitual  criminal  has  a  right  to  a  home,  a 
resting-place.  If  the  hardened  character  of  the  criminal 
makes  his  reform  an  impossibility,  and  renders  him  so  dan- 
gerous to  the  community  that  he  cannot  be  allowed  to  live 
as  other  men  do,  he  may  be  permanently  confined  for  life 
as  a  punishment  of  the  third,  fifth,  or  other  successive  com- 
mission of  the  offense  ;  he  may  be  placed  under  police  sur- 
veillance, as  is  the  custom  in  Europe,  and  he  may  be  com- 
pelled, by  the  enforcement  or  the  vagrant  laws,  to  engage 
in  some  lawful  occupation.  But  it  is  impossible  to  punish 
him,  as  for  a  distinct  offense,  for  being  what  is  the  necessary 
consequence  of  those  criminal  acts,  which  have  been  already 
expiated  by  the  infliction  of  the  legal  punishment. 

But  the  laws  have  been  generally  sustained,  wherever 
their  constitutionality  has  been  brought  into  question.  In 
criticising  the  objection  just  made,  the  Supreme  Court  of 
Ohio  say  :  "  The  only  limitations  to  the  creation  of  offenses 
by  the  legislative  power  are  the  guarantees  contained  in  the 
bill  of  rights,  neither  of  which  is  infringed  by  the  statute  in 

1  Commonwealth  v.  Hopkins,  2  Dana,  418. 

§    51 


154  CONTROL    OF    DANGEROUS    CLASSES. 

question.  It  is  a  mistake  to  suppose  that  offenses  must  be 
confined  to  specific  acts  of  commission  or  omission.  A  gen- 
eral course  of  conduct  or  mode  of  life,  which  is  prejudicial 
to  the  public  welfare,  may  likewise  be  prohibited  and  pun- 
ished as  an  offense.  Such  is  the  character  of  the  offense  in 
question.  *  *  *  At  common  law  a  common  scold  was 
indictable ;  so  also  a  common  barrator ;  and,  by  various 
English  statutes,  summary  proceedings  were  authorized 
against  idlers,  vagabonds,  rogues,  and  other  classes  of  dis- 
orderly persons.1  In  the  several  States  in  this  country 
similar  offenses  are  created.  In  some  of  the  States  it  is 
made  an  offense  to  be  a  common  drunkard,  a  common 
gambler,  a  common  thief,  each  State  defining  the  offenses 
according  to  its  own  views  of  public  policy.  *  *  *  In 
such  cases  the  offense  does  not  consist  of  particular  acts, 
but  in  the  mode  of  life,  the  habits  and  practices  of  the 
accused  in  respect  to  the  character  or  traits  which  it  is  the 
object  of  the  statute  creating  the  offense  to  suppress."2 
A  practical  difficulty  in  enforcing  such  laws  would  arise 
in  determining  what  kind  of  evidence,  and  how  much, 
it  was  necessary  to  convict  one  of  being  a  common  or 
habitual  criminal.  Conceding  the  constitutionality  of 
the  law  which  makes  habitual  criminality  a  distinct  pun- 
ishable offense,  the  position  assumed  by  the  Kentucky" 
court,  in  respect  to  the  quality  and  character  of  the  evidence 
needed  to  procure  a  conviction  under  the  law,  cannot  be 
questioned.  The  court  say:  "  It  is  the  general  course  of 
conduct  in  pursuing  the  business  or  practice  of  unlawful 
gaming,  which  constitutes  a  common  gambler.  As  a  man's 
character  is  no  doubt  formed  by,  and  results  from,  his 
habits  and  practices;  and  we  may  infer,  by  proving  his 

r 

1  See  Stephen's  Dig.  of  Grim.  Law,  art.  193. 

2  Morgan  w.  Nolte,  37  Ohio  St.  23  (41  Am.  Rep.  486).    And  it  is  also 
held  to  be  constitutional  to  provide  for  the  punishment  of  such   offenses 
by  a  summary  conviction  without  jury  trial.    Byers  v.  Commonweath, 
42  Pa.  St.  89. 

§  51 


POLICE   SUPERVISION    OF    HABITUAL    CRIMINALS.         155 

Character,  what  his  habits  and  practices  have  been.  But 
we  do  not  know  any  principle  of  law,  which  sanctions  the 
introduction  of  evidence  to  establish  the  character  of  the 
accused,  with  a  view  to  convict  him  of  offending  against  the 
law  upon  such  evidence  alone.  If  the  statute  had  made  it 
penal  to  possess  the  character  of  a  common  gambler,  the 
rejected  testimony  would  have  been  proper.  But  we  appre- 
hend that  the  question  whether  a  man  is,  or  is  not,  a  com- 
mon gambler,  depends  upon  matters  of  fact  —  his  prac- 
tices, and  not  his  reputation  or  character;  and,  therefore, 
the  facts  must  be  proved,  as  in  other  cases. 

«*  The  attorney  for  the  Commonwealth  offered  to  prove 
by  a  witness,  that  the  accused  *  had  played  at  cards  for 
money,'  since  February,  1833,  and  before  the  finding  of 
the  indictment.  The  court  rejected  the  evidence,  and  we 
think  erroneously.  How  many  acts  there  were,  of  playing 
and  betting,  or  the  particular  circumstances  attending  each, 
cannot  be  told,  inasmuch  as  the  witness  was  not  allowed  to 
make  his  statement.  Every  act,  however,  of  playing  and 
betting  at  cards,  which  the  testimony  might  establish,  would 
have  laid  some  foundation  on  which  the  venire  could  have 
rested,  in  coming  to  the  conclusion,  whether  the  general 
conduct  and  practices  of  the  accused  did,  or  did  not,  con- 
stitute him  a  common  gambler.  One,  or  a  few  acts  of  bet- 
ting and  playing  cards,  might  be  deemed  insufficient,  under 
certain  circumstances,  to  establish  the  offense.  For  in- 
stance, if  the  accused,  during  the  intervals  between  the 
times  he  played  and  bet,  was  attending  to  some  lawful 
business,  his  farm,  his  store,  or  his  shop,  it  might  thereby 
be  shown  that  his  playing  and  betting  were  for  pastime  and 
amusement  merely.  Under  such  circumstances  the  evi- 
dence might  fail  to  show  the  accused  was  a  common  gam- 
bler. Thus,  while  many  acts  of  gaming  may  be  palliated, 
so  as  to  show  that  the  general  conduct  and  practices  of  an 
individual  are  not  such  as  to  constitute  him  a  common 
gambler;  on  the  other  hand,  a  single  act  may  be  attended 

§  51 


156  CONTROL    OF   DANGEROUS    CLASSES. 

with  such  circumstances  as  to  justify  conviction.  For 
example,  if  an  individual  plays  and  bets,  and  should  at  the 
time  display  all  the  apparatus  of  an  open,  undisguised, 
common  gambler,  it  would  be  competent  for  the  jury, 
although  he  was  an  entire  stranger,  to  determine  that  he  fell 
within  the  provisions  of  the  statute.  The  precise  nature  of 
the  acts  which  the  testimony  would  have  disclosed,  had  it 
been  heard,  is  unknown;  but  we  perceive  enough  to 
convince  us  that  it  -was  relevant  and  ought  to  have  been 
heard. 

"  The  attorney  for  the  Commonwealth  offered  to  prove 
by  a  witness,  that  the  accused  had,  within  the  period  afore- 
said, set  up  and  kept  faro  banks  and  other  gaming  tables, 
at  which  money  was  bet,  and  won  and  lost,  at  places  with- 
out the  county  of  Fayette,  where  the  indictment  was  found ; 
and  the  court  excluded  the  testimony.  In  this  the  court 
clearly  erred.  It  makes  no  difference  where  the  gaming 
takes  placel  If  a  person  has  gamed  until  he  is  a  common 
gambler,  without  the  county  of  Fayette,  he  may  go  to  that 
county  for  the  purpose  of  continuing  his  practices.  In  such 
a  case  it  was  the  object  of  the  statute  to  arrest  him  as  soon 
as  possible  by  conviction,  and  requiring  the  bond  provided 
for  in  the  sixth  section  of  the  act  of  1833.  The  testimony 
should  have  been  admitted."  1 


1  Commonwealth  v.  Hopkins,  2  Dana,  418.  In  the  following  opinion 
is  discussed  the  amount  and  character  of  the  evidence  required  to  con- 
vict one  of  being  a  common  thief :  u  The  act  of  the  assembly  under  which 
appellant  was  indicted,  provides  that  *  any  evidence  of  facts  or  reputa- 
tion, proving  that  such  a  person  is  habitually  and  by  practice  a  thief,  shall 
be  sufficient  for  his  conviction,  if  satisfactorily  establishing  the  fact.'  In 
order  to  justify  a  conviction  of  a  party  of  the  offense  created  by  the  act, 
there  must  be  proof  of  either  facts  or  reputation,  sufficient  to  satisfy  the 
jury  that  the  party  accused  is  by  practice  and  habit  a  thief.  The  offense 
is  but  a  misdemeanor,  and  it  must,  therefore,  be  prosecuted  within  one 
year  from  the  time  of  its  commission.  It  is  necessary,  in  order  to  justify 
conviction,  that  the  proof  should  establish  the  fact  that  the  accused  was 
•  a  common  thief '  within  one  year  before  the  prosecution  was  begun,  and 
therefore,  evidence  of  'acts  of  larceny,'  committed  more  than  a  year 
§  51 


POLICE    SUPERVISION    OF    HABITUAL    CRIMINALS.         157 

Another  phase  of  police  supervision  is  that  of  photo- 
graphing alleged  criminals,  and  sending  copies  of  the 
photograph  to  all  detective  bureaus.  If  this  be  directed  by 
the  law  as  punishment  for  a  crime  of  which  the  criminal 
stands  convicted,  or  if  the  man  is  in  fact  a  criminal,  and 
the  photograph  is  obtained  without  force  or  compulsion, 
there  can  be  no  constitutional  or  legal  objection  to  the  act  ; 
for  no  right  has  been  violated.  But  the  practice  is  not 
confined  to  the  convicted  criminals.  It  is  very  often  em- 
ployed against  persons  who  are  only  under  suspicion.  In 
such  a  case,  if  the  suspicion  is  not  well  founded,  and  the 
suspected  person  is  in  fact  innocent,  such  use  of  his 
photograph  would  be  a  libel,  for  which  every  one  could  be 
held  responsible  who  was  concerned  in  its  publication. 
And  it  would  be  an  actionable  trespass  against  the  right 
of  personal  security,  whether  one  is  a  criminal  or  not,  to 
be  compelled  involuntarily  to  sit  for  a  photograph  to  be 

before  the  indictment  was  found,  would  not  be  admissible.  Though  the 
conviction  of  the  accused  of  the  larceny  of  a  watch  was  within  a  year  be- 
fore this  prosecution  was  begun,  it  was  contended  that,  standing  alone,  it 
was  not  sufficient  to  prove  that  the  accused  was  by  habit  and  practice  a 
thief,  and  that  it  was  not  admissible,  unless  connected  with  an  offer  to 
follow  it  up  with  other  proof  to  the  same  point,  and  that,  as  no  such 
offer  was  made,  the  criminal  court  erred  in  admitting  it.  It  did  not  mat- 
ter that  the  record  of  the  conviction  of  the  accused,  of  larceny  in  1877, 
did  not  prove  the  whole  issue.  The  court  had  no  right  to  require  the 
State's  attorney  to  disclose  in  advance  what  other  proof  he  intended  to 
offer.  While  the  record  of  conviction  was  not  of  itself  legally  sufficient 
to  convict,  it  was  a  link  in  the  chain  of  evidence  admissible  per  se,  when 
offered,  as  tending  to  prove  the  issue.  Its  legal  effect  was  a  question  for 
the  jury  to  determine,  they  being  under  our  constitution  the  judges  of 
the  law  and  the  facts  in  criminal  cases.  So  also  with  respect  to  the 
objection  to  the  evidence  of  the  reputation  of  the  accused,  as  given  by  the 
police  officer.  Reputation  is  but  a  single  fact,  and  the  whole  may  be  given 
in  evidence,  commencing  at  a  period  more  than  a  year  before  the  indict- 
ment was  found.  The  reputation  which  the  accused  bore  at  a  time  more 
than  a  year  before  the  indictment,  was  admissible,  though  it  would  not 
of  itself  justify  a  conviction,  and  unless  followed  up  with  proof  that  such 
reputation  continued,  and  was  borne  by  the  accused  within  a  year  before 
the  indictment  was  found."  World  v.  State,  50  Md.  4. 

§    51 


158  CONTROL    OF   DANGEROUS    CLASSES. 

used  for  such  purposes,  unless  it  was  imposed  by  the 
statutes  as  a  punishment  for  the  crime  of  which  he  has  been 
convicted. 

In  the  city  of  New  York,  Manhattan  Borough,  the  Police 
Department  have  from  time  to  time  employed,  what  may 
be  called  extra-legal,  measures  in  the  prevention  of  crime; 
and  public  opinion  seems  to  have  justified  them  in  consid- 
eration of  the  undoubted  worthy  end  in  view,  and  the  suc- 
cessful attainment  of  that  end.  One  of  these  measures  is 
on  occasions,  when  large  crowds  are  expected  to  assemble 
to  celebrate  some  event,  or  to  witness  some  pageant,  to 
arrest  and  detain  in  prison,  during  such  celebration  or 
assembly  of  an  unusual  multitude,  all  known  crooks  and 
disorderly  or  criminal  people.  These  are  then  charged 
with  vagrancy  and  either  punished  or  discharged  at  the 
discretion  of  the  magistrate,  before  whom  they  are  subse- 
quently brought.  So  far  as  these  people  may  be  lawfully 
charged  with  vagrancy,  their  arrest  and  detentkm  may  be 
lawful ;  but  beyond  that,  there  is  no  authority  in  law  for 
such  police  action. 

Another  police  regulation  in  New  York  City  is  similar 
to  that  which  has  just  been  explained,  except  that  it  is  a 
permanent  regulation.  In  a  section  of  Manhattan,  extend- 
ing south  of  Fulton  street,  and  east  of  Broadway,  in  which 
millions  of  portable  property  are  held  and  stored,  and  in 
which  most  of  the  large  banks  and  safe  deposit  vaults  are 
located,  any  known  crook,  thief  or  burglar  is  arrested  on 
sight;  it  matters  not  how  peaceable  and  law  abiding  his 
actions  may  be  at  the  time.  These  streets  are  known 
among  the  criminal  classes  as  the  "  dead  line,"  which  they 
dare  not  cross  except  under  the  penalty  of  immediate 
arrest  by  some  one  of  the  secret  detectives  who  patrol 
that  section. 

These  are  the  only  modes  of  police  supervision  of  habit- 
ual criminals  which  the  American  law  permits.  But  on  the 
continent  of  Europe,  it  seems  that  the  court  may,  even  in 
§  51 


POLICE   SUPERVISION   OF   HABITUAL   CRIMINALS.        159 

cases  of  acquittal  of  the  specific  charge,  under  certain 
limitations  which  vary  with  each  statute,  subject  an  evil 
character  after  his  discharge  to  the  supervision  and  control 
of  the  police.  Such  persons  are  either  confined  within 
certain  districts,  or  are  prohibited  from  residing  in  certain 
localities.  They  are  sometimes  compelled  to  report  to 
certain  police  officers  at  stated  times,  and  other  like  pro- 
visions for  their  control  are  made.  This  police  supervision 
lasts  during  life,  or  for  some  stated  period  which  varies 
with  the  gravity  of  the  offense  and  the  number  of  offenses 
which  the  person  under  supervision  has  committed.  Sim- 
ilar regulations  have  been  established  in  England,  by  "  The 
Habitual  Criminal  Act."  1 

As  a  punishment  for  crime,  there  can  be  no  doubt  of  the 
power  of  the  legislature  to  institute  such  police  regulations, 
unless  the  length  of  time,  during  which  the  convicted  crim- 
inal is  kept  under  surveillance,  would  expose  the  regulation 
to  the  constitutional  objection  of  being  a  cruel  and  unusual 
punishment.  But  to  enforce  such  a  regulation  in  any  other 
manner,  or  under  any  other  character,  than  as  a  punish- 
ment for  a  specific  crime,  would  clearly  be  a  violation  of 
the  right  of  personal  liberty,  not  permitted  by  the  consti- 
tution. 

Police  supervision  of  prostitutes,  so  universal  a  custom 
in  the  European  cities,  is  sometimes  considered  in  the  same 
light,  but  is  essentially  different.  Prostitution  is  an  offense 
against  the  law,  and  the  prostitute  is  held  to  be  clearly  sub- 
ject to  the  penalties  of  the  criminal  law;2  and  these  city 
ordinances  render  lawful  the  practice  by  authorizing  its 
prosecution  under  certain  limitations  and  restrictions,  among 
which  are  police  supervision  and  inspection.  But  the  sub- 
jection to  this  control  is  voluntary  on  the  part  of  the  prosti- 
tute, in  order  to  render  practices  lawful  which  are  otherwise 

1  32  and  33  Viet.,  ch.  99.     See  Polizeiaufsicht  in  Von   HoltzendorfP s 
Rechtslexikon,  vol.  2,  pp.  322,  323. 

2  Dunn  0.  Commonwealth  (Ky.  '99),  49  S.  W.  813. 

§  51 


160  CONTROL    OF    DANGEROUS    CLASSES. 

unlawful.  It  is  rather  in  the  character  of  a  license,  under 
certain  restraints,  to  commit  an  offense  against  public 
morality 

§  52.  State  control  of  minors.  —  It  is  not  proposed  to 
discuss  in  this  connection  the  power  of  the  State  to  inter- 
fere with  the  parent's  enjoyment  of  his  natural  right  to  the 
care  and  education  of  his  minor  child.  The  regulation  of 
this  relative  right  will  be  explained  in  a  subsequent  section.1 
Here  we  shall  make  reference  only  to  the  power  of  the 
State  to  take  into  its  care  and  custody  the  young  children 
who  have  been  robbed  by  death  of  parental  care,  and  but 
for  State  interference  would  be  likely  to  suffer  want,  or  at 
least  to  grow  up  in  the  streets,  without  civilizing  influences, 
and  in  most  cases  to  swell  the  vicious  and  criminal  classes. 
There  can  be  no  doubt  that,  in  the  capacity  of  a  parens 
putrice,  the  State  can,  and  should,  make  provision  for  the 
care  and  education  of  these  wards  of  society,  not  only  for 
the  protection  of  society,  but  also  for  the  benefit  of  the  chil- 
dren themselves.  The  State  owes  this  duty  to  all  classes, 
who  from  some  excessive  disability  are  unable  to  take  care 
of  themselves.  It  is  clear,  as  has  already  been  stated,  and 
explained  in  several  connections,  the  State  has  no  right  to 
force  a  benefit  upon  a  full  grown  man,  of  rational  mind, 
against  his  will.  But  the  minor  child  is  not  any  more  cap- 
able of  determining  what  is  best  for  himself  than  a  lunatic 
is.  Being,  therefore,  devoid  of  the  average  mental  powers 
of  an  adult,  he  is  presumed  to  be  incapable  of  taking  care  of 
himself,  and  the  State  has  the  right,  in  the  absence  of  some 
one  upon  whom  the  law  of  nature  imposes  this  duty,  to  take 
the  child  in  custody,  and  provide  for  its  nurture  and  educa- 
tion. This  subjection  to  State  control  continues  during 
minority. 

Now,  there  are  two  ways  in  which  the  State  can  interfere 

1  See  post,  §§  195,  196a. 
§    52 


STATE    CONTROL    OF   MINORS.  161 

in  the  care  and  management  of  a  child  without  parental  care. 
It  can  either  appoint  some  private  person  as  guardian,  into 
whose  custody  the  child  is  placed,  or  it  may  direct  him  to 
be  sent  to  an  orphan  asylum  or  reformatory  school, 
especially  established  for  the  education  and  rearing  of 
children  who  cannot  be  otherwise  cared  for.  The  right  of 

o 

the  State  to  interfere  in  either  way  has  never  been  disputed, 
but  a  serious  and  important  question  has  arisen  as  to  the 
necessary  formalities  of  the  proceedings,  instituted  to  bring 
such  children  under  the  control  of  the  State.  As  already 
explained,  the  constitution  provides,  in  the  most  general 
terms,  that  no  man  shall  be  deprived  of  his  liberty,  except 
by  due  process  of  law.  Of  course,  minors  are  as  entitled 
to  the  benefit  of  this  constitutional  protection  as  any  adult, 
within,  what  must  necessarily  be  supposed  to  have  been, 
the  intended  operation  of  this  provision.  In  the  nature  of 
things,  we  cannot  suppose  the  authors  of  this  provision  to 
have  intended  that,  before  parents  could  exercise  control 
over  their  minor  children,  and  restrain  them  of  their  lib- 
erty, they  would  be  compelled  to  apply  to  a  court  for  a 
decretal  order  authorizing  the  restraint.  The  law  of  nature 
requires  the  subjection  of  minors  to  parental  control,  and 
we  therefore  conclude  that  "  the  framers  of  the  constitu- 
tion could  not,  as  men  of  ordinary  prudence  and  foresight, 
have  intended  to  prohibit  [such  control]  in  the  particular 
case,  notwithstanding  the  language  of  the  prohibition  would 
otherwise  include  it."  l  The  subjection  of  minors  to  con- 
trol being  a  natural  and  ordinary  condition,  when  it  is 
clearly  established  that  the  State,  as  parens  patrice,  suc- 
ceeds to  the  parent's  rights  and  duties,  in  respect  to  the 
care  of  the  child,  due  process  of  law  would  be  no  more 
necessary  to  support  the  assumption  of  control  by  the  State 
than  it  is  necessary  to  justify  the  parental  control.  The 
child  is  not  deprived  of  a  natural  right,  and  hence  he  is  not 

1  Christiancy,  J.,  in  People  v.  Plank  Road  Co.,  9  Mich.  285. 

11  §  52 


162  CONTROL    OF    DANGEROUS    CLASSES. 

deprived  of  his  liberty  in  any  legal  sense  of  the  term.  In 
a  late  case  the  Supreme  Court  of  Illinois  has,  in  an  opinion 
exhibiting  considerable  warmth  of  feeling,  declared  that  an 
adjudication  is  necessary  before  the  child  can  be  deprived 
of  its  natural  liberty.1 

1  '•  In  cases  of  writs  of  habeas  corpus  to  bring  up  infants,  there  are 
other  rights  besides  the  rights  of  the  father.  If  improperly  or  illegally 
restrained,  it  is  our  duty,  ex  debitio  justitice  to  liberate.  The  welfare  and 
rights  of  the  child  are  also  to  be  considered.  The  disability  of  minors 
does  not  make  slaves  or  criminals  of  them.  They  are  entitled  to  legal 
rights,  and  are  under  legal  liabilities.  An  implied  contract  for  necessa- 
ries is  binding  on  them.  The  only  act  which  they  are  under  a  legal  in- 
capacity to  perform,  is  the  appointment  of  an  attorney.  All  their  other 
acts  are  merely  voidable  or  confirmable.  They  are  liable  for  torts  and 
punishable  for  crime.  Every  child  over  ten  years  of  age  may  be  found 
guilty  of  crime.  For  robbery,  burglary  or  arson,  any  minor  may  be  sent 
to  the  penitentiary.  Minors  are  bound  to  pay  taxes  for  support  of  the 
government,  and  constitute  a  part  of  the  militia,  and  are  compelled  to 
endure  the  hardship  and  privation  of  a  soldier's  life,  in  defense  of  the 
constitution  and  the  laws ;  and  yet  it  is  assumed  that  to  them  liberty  is  a 
mere  chimera.  It  is  something  of  which  they  may  have  dreamed,  but 
have  never  enjoyed  the  fruition. 

11  Can  we  hold  children  responsible  for  crime,  liable  for  torts,  impose 
onerous  burdens  upon  them,  and  yet  deprive  them  of  the  enjoyment  of 
liberty  without  charge  or  conviction  of  crime?  The  bill  of  rights  de- 
clares that '  all  men  are,  by  nature,  free  and  independent,  and  have  cer- 
tain inherent  and  inalienable  rights  —  among  these  are  life,  liberty,  and 
the  pursuit  of  happiness.'  This  language  is  not  restrictive;  it  is  broad 
and  comprehensive,  and  declares  a  grand  truth ;  that «  all  men,' all  people, 
everywhere,  have  the  inherent  and  inalienable  right  to  liberty.  Shall  we 
say  to  the  children  of  the  State,  you  shall  not  enjoy  this  right  —  a  right 
independent  of  all  human  laws  and  regulations?  It  is  declared  in  the 
constitution;  is  higher  than  the  constitution  and  law,  and  should  be 
held  forever  sacred. 

"Even  criminals  cannot  be  convicted  and  imprisoned  without  due 
process  of  law  —  without  regular  trial,  according  to  the  course  of  the 
common  law.  Why  should  minors  be  imprisoned  for  misfortune?  Des- 
titution of  proper  parental  care,  ignorance,  idleness  and  vice,  are 
misfortunes,  not  crimes.  In  all  criminal  prosecutions  against  minors  for 
grave  and  heinous  offenses,  they  have  the  right  to  demand  the  nature 
and  cause  of  the  accusation,  and  a  speedy  public  trial  by  an  impartial 
jury.  All  this  must  precede  the  final  commitment  to  prison.  Why  should 
children,  only  guilty  of  misfortune,  be  deprived  of  liberty  without  «  due 
process  of  law? ' 
§  52 


STATE    CONTROL    OF    MINORS.  163 

This  is  really  only  a  dictum  of  the  court  so  far  as  it 
affirms  the  right  of  a  child  to  a  trial,  before  the  State  can 
place  him  under  restraint,  for  in  this  case  the  boy  was 
taken  from  the  custody  of  his  father,  and  the  real  ques- 
tion at  issue  was  whether  the  State  had  a  right  to  interfere 
with  the  father's  control  of  the  boy.  This  aspect  of  the 
question  will  be  presented  subsequently.1  The  following 
calm,  dispassionate  language  of  the  Supreme  Court  of 
Ohio  commends  itself  to  the  consideration  of  the  reader. 
It  was  a  case  of  committal  to  reformatory  school  on  an  ex 
parte  examination  by  the  grand  jury,  of  a  boy  under  six- 
teen, who  had  been  charged  with  crime,  under  statutes 
which  authorize  and  direct  the  proceeding:  — 

«'  The  proceeding  is  purely  statutory  ;  and  the  commit- 
ment, in  cases  like  the  present,  is  not  designed  as  a  punish- 
ment for  crime,  but  to  place  minors  of  the  description, 
and  for  the  causes  specified  in  the  statute,  under  the  guard- 
ianship of  the  public  authorities  named,  for  proper  care 
and  discipline,  until  they  are  reformed,  or  arrive  at  the 
age  of  majority.  The  institution  to  which  they  are  com- 
mitted is  a  school,  not  a  prison,  nor  is  the  character  of  this 
detention  affected  by  the  fact  that  it  is  also  a  place  where 
juvenile  convicts  may  be  sent,  who  would  otherwise  be 
condemned  to  confinement  in  the  common  jail  or  peniten- 
tiary. *  *  *  Owing  to  the  ex  parte  character  of  the 
proceeding,  it  is  possible  that  the  commitment  of  a  person 

"  It  cannot  be  said  that  ID  this  case  there  is  no  imprisonment. 
This  boy  is  deprived  of  a  father's  care;  bereft  of  home  influences;  has 
no  freedom  of  action;  is  committed  for  an  uncertain  time;  is  branded 
as  a  prisoner;  made  subject  to  the  will  of  others,  and  thus  feels  that  he 
is  a  slave.  Nothing  could  more  contribute  to  paralyze  the  youthful 
energies,  crush  all  noble  aspirations  and  unfit  him  for  the  duties  of  man- 
hood. Other  means  of  a  milder  character;  other  influences  of  a  more 
kindly  nature ;  other  laws  less  in  restraint  of  liberty  would  better  ac- 
complish the  reformation  of  the  depraved,  and  infringe  less  upon  in- 
alienable rights."  People  v.  Turner,  55  111.  280.  But  see  contra,  Ex  parte 
Ferrier,  103  m.  367  (42  Am.  Rep.  10). 

1  See  post,  §  196o. 

§   52 


164  CONTROL   OF   DANGEROUS    CLASSES. 

might  be  made  on  a  false  and  groundless  charge.  In  such 
a  case  neither  the  infant  nor  any  person  who  would,  in  the 
absence  of  such  commitment,  be  entitled  to  his  custody 
and  services,  will  be  without  remedy.  If  the  remedy  pro- 
vided in  the  twentieth  section  should  not  be  adequate  or 
available,  the  existence  of  a  sufficient  cause  for  the  de- 
tention might,  we  apprehend,  be  inquired  into  by  a  pro- 
ceeding in  habeas  corpus."  l 

1  Prescott  v.  State,  19  Ohio  St.  184  (2  Am.  Rep.  388).  The  following 
provisions  of  the  present  charter  of  the  city  of  New  York  may  be  of 
value  in  explaining  the  scope  of  the  power  of  the  State  in  controlling 
the  liberty  and  providing  for  the  welfare  of  children,  who  otherwise 
might  become  dangerous  elements  of  society. 

"  Each  Commissioner  [of  Public  Charities]  shall  have  authority,  and 
it  shall  be  his  duty,  to  visit  and  inspect,  personally,  or  by  his  agent,  all 
charitable,  eleemosynary,  and  reformatory  institutions,  wholly  or  partly 
under  private  control,  which  are  situated  or  hereafter  established  within 
the  borough  or  boroughs  for  which  he  is  appointed,  or  which  receive 
inmates  from  such  borough  or  boroughs,  and  which  demand  or  receive 
payment  from  the  City  of  New  York  for  the  care,  support,  or  maintenance 
of  inmates.  No  payment  shall  be  made  to  any  such  last-mentioned  insti- 
tution by  the  City  of  New  York  for  the  care,  support,  or  maintenance  of 
any  inmate  except  upon  the  certificate  of  said  Commissioner,  or  his 
deputy,  showing  that  said  inmate  has  been  accepted  by  such  Commis- 
sioner, pursuant  to  the  rules  and  regulations  established  by  the  State 
Board  of  Charities,  as  a  proper  public  charge  for  the  period  for  which 
payment  is  demanded. 

"  Each  Commissioner  shall  have  power  to  indenture,  place  out,  dis- 
charge, transfer,  or  commit  any  child  for  whose  care,  support,  or  main- 
tenance payment  from  the  City  of  New  York  is  demanded  or  received  by 
any  of  the  aforesaid  institutions,  which  are  wholly  or  partly  under 
private  control,  or  who  may  be  in  his  custody,  whenever,  in  his  judg- 
ment, it  shall  be  for  the  best  interests  of  such  child  so  to  do,  and  he  and 
his  successors  in  office  shall  have  power  to  revoke  or  cancel  any  such 
indenture  or  agreement,  and  to  make  contracts  for  the  maintenance  of 
any  such  child  in  accordance  with  the  general  rules  and  regulations  of 
the  board;  but,  in  indenturing,  placing  out,  transferring,  or  committing 
any  such  child  such  Commissioner  shall,  when  practicable,  indenture  or 
place  out  such  child  with  an  individual  of  the  like  religions  faith  as  the 
parents  of  such  child,  or  transfer  or  commit  it  to  an  institution  governed 
by  persons  of  the  same  religious  faith. 

"  It  shall  be  the  duty  of  the  Commissioner  so  notified  to  investigate 
forthwith  the  circumstances  of  the  arrest  and  of  the  charge  against  such 
§  52 


CHAPTER    VI. 

REGULATIONS   OF  THE  BIGHTS  OF  CITIZENSHIP  AND 
DOMICILE. 

SUCTION  53.  Citizenship  and  domicile  distinguished. 

54.  Expatriation. 

55.  Naturalization. 

66.  Prohibition  of  emigration. 

57.  Compulsory  emigration. 

58.  Prohibition  of  immigration. 

59.  The  public  duties  of  a  citizen. 

§  53.  Citizenship  and    domicile  distinguished. — The 

distinction  between  citizenship  and  domicile  has  been  so 

child,  with  a  view  of  determining  the  bona  fides  of  the  same  and  of  the 
merit  of  the  claim  for  the  support  of  such  child  as  a  public  charge  at 
the  expense  of  the  borough  in  which  such  arrest  is  made,  and  the  court 
or  magistrate  before  which  such  proceeding  is  pending  is  hereby 
authorized,  in  its  or  his  discretion,  to  adjourn  such  proceeding  from 
time  to  time,  pending  such  investigation  by  the  Commissioner,  and  to 
send  back  the  final  report,  when  made,  for  further  investigation  and 
report,  and  to  examine  under  oath  the  person  or  persons  making  such 
investigation  on  behalf  of  the  Commissioner. 

"  The  term  of  commitment  of  each  child  committed  in  the  City  of 
New  York  as  constituted  by  this  act  under  any  of  the  provisions  of 
Section  291  of  the  Penal  Code  or  of  Section  888  of  the  Code  of  Criminal 
Procedure,  shall  be  until  such  child  shall  attain  the  age  of  sixteen  years, 
or  until,  with  the  written  consent  of  the  Commissioner,  it  shall  be  duly 
bound  out  as  an  apprentice  by  the  institution  to  which  it  shall  have  been 
committed,  or  until,  with  like  consent,  it  shall  be  given  over  in  adoption 
by  the  said  institution  to  some  suitable  person,  or  until  upon  application 
by  or  upon  due  notice  to  the  Commissioner  any  court  or  magistrate  of 
the  City  of  New  York  as  constituted  by  this  act  authorized  by  law  to 
make  commitment  under  Section  291  of  the  Penal  Code,  shall,  upon 
proof,  to  its  or  his  satisfaction  that  the  best  interests  of  such  child 
require  its  immediate  discharge  from  commitment,  make  an  order  direct- 
ing such  discharge,  or  until  upon  at  least  five  days'  written  notice  to  the 
Commissioner  it  shall  be  returned  by  such  institution  to  the  committing 
magistrate,  court  or  official,  as  the  case  may  be,  on  the  stated  ground 
that,  in  the  opinion  of  said  institution,  said  child  is  an  improper  subject 
for  its  further  custody  or  care." 

§    53  (165) 


166  REGULATIONS    OF   RIGHTS    OF    CITIZENSHIP. 

often  explained  in  elementary  treatises  that  only  a  passing 
reference  will  be  needed  here,  in  order  to  refresh  the  mem- 
ory of  the  reader.  Mr.  Cooley  defines  a  citizen  to  be  **a 
member  of  the  civil  state  entitled  to  all  its  privileges."1 
Mr.  Blackstone's  definition  of  allegiance,  which  is  the  obli- 
gation of  the  citizen,  is  "  the  tie  which  binds  the  subject 
to  the  sovereign,  in  return  for  that  protection  which  the 
sovereign  affords  the  subject."  2  Citizenship,  therefore,  is 
that  political  status  which  supports  mutual  rights  and  obli- 
gations. The  State,  of  which  an  individual  is  a  citizen,  may 
require  of  him  various  duties  of  a  political  character;  while 
he  is  entitled  to  the  protection  of  the  government  against 
all  foreign  attacks,  and  is  likewise  invested  with  political 
rights  according  to  the  character  of  the  government  of  the 
State,  the  chief  of  which  is  the  right  of  suffrage. 

Domicile  is  the  place  where  one  permanently  resides. 
One's  permanent  residence  may  be,  and  usually  is,  in  the 
country  of  which  he  is  a  citizen,  but  it  need  not  be,  and 
very  often  is  not.  One  can  be  domiciled  in  a  foreign  land. 
While  a  domicile  in  a  foreign  State  subjects  the  individual 
and  his  personal  property  to  the  regulation  and  control  of 
the  law  of  the  domicile,  i.  e.,  creates  a  local  or  temporary 
allegiance  on  the  part  of  the  individual  to  the  State  in 
which  he  is  resident,  and  although  he  can  claim  the  protec- 
tion of  the  laws  during  his  residence  in  that  State,  he  does 
not  assume  political  obligations  or  acquire  political  rights, 
and  can  not  claim  the  protection  of  the  government,  after 
he  has  taken  his  departure  from  the  country.  Only  a  citi- 
zen can  claim  protection  outside  of  the  country. 

There  is  no  permanent  tie  binding  the  resident  alien  to 
the  State,  and  there  is  no  permanent  obligation  on  the  part 
of  either.  The  individual  is  at  liberty  to  abandon  his  dom- 
icle,  whenever  he  so  determines,  without  let  or  hindrance 


1  Cooley  on  Const.  Law,  77. 
*  1  Bl.  Com.  *441. 

§    53 


EXPATRIATION.  167 

on  the  part  of  the  State,  in  which  he  has  been  resident. 
This  is  certainly  true  of  a  domicile  in  a  foreign  country. 

§  54.  Expatriation. —  But  it  has  been  persistently  main- 
tained by  the  European  powers,  until  within  the  last  twenty 
years,  that  the  citizen  cannot  throw  off  his  allegiance,  and  by 
naturalization  become  the  citizen  of  another  country.  The 
older  authorities  have  asserted  the  indissolubility  of  the  alle- 
giance of  the  natural-born  subject  to  his  sovereign  or  State. 
Mr.  Blackstone  says,  "  it  is  a  principle  of  universal  law  that 
the  natural-born  subject  of  one  prince  cannot  by  any  act  of 
his  own,  no,  not  by  swearing  allegiance  to  another,  put  off  or 
discharge  his  natural  allegiance  to  the  former  ;  for  this  na- 
tural allegiance  was  intrinsic  and  primitive,  and  antecedent 
to  the  other;  and  cannot  be  divested  without  the  concur- 
rent act  of  the  prince  to  whom  it  was  due."  1  Although  all 
the  States  of  Europe  have  provided  for  the  naturalization 
of  aliens,  they  have  uniformly  denied  to  their  own  subjects 
the  right  of  expatriation.  But  when  emigration  to  this 
country  became  general,  this  right  was  raised  to  an  interna- 
tional question  of  great  importance,  and  in  conformity  with 
their  own  interests  and  their  general  principles  of  civil  lib- 
erty, the  United  States  have  strongly  insisted  upon  the 
natural  and  absolute  right  of  expatriation.  This  question 
has  been  before  the  courts  of  this  country,2  and  at  an  early 
day  the  Supreme  Court  of  the  United  States  showed  an  in- 
clination to  take  the  European  view  of  this  right.8  But 


1  1  Bl.  Com.  *446. 

2  See  Inglis  ».  Sailor's  Snug  Harbor,  3  Pet.  99;  Shanks  v.  Dupont,  8 
Pet.  242;  Stoughton  v.  Taylor,  2  Paine,  655;  Jackson  v.  Burns,  3  Binn. 
85. 

8  "  In  the  first  place,  she  was  born  under  the  allegiance  of  the  British 
crown,  and  no  act  of  the  government  of  Great  Britain  has  absolved  her 
from  that  allegiance.  Her  becoming  a  citizen  of  South  Carolina  did  not, 
ipso  facto,  work  any  dissolution  of  her  original  allegiance,  at  least  so  far 
as  the  rights  and  claims  of  the  British  crown  were  concerned."  Shanks 
«.  Dupont,  3  Pet.  242.  See  Talbot  v.  Janson,  3  Dall.  133;  Isaac  Will- 

§    54 


168  REGULATIONS    OF    RIGHTS    OF    CITIZENSHIP. 

the  question  has  been  finally  settled  in  favor  of  the  right  of 
expatriation,  so  far  at  least  as  the  government  of  the 
United  States  is  concerned,  by  an  act  of  Congress  in  the 
following  terms :  — 

"  Whereas,  the  right  of  expatriation  is  a  natural  and  in- 
herent right  of  all  people,  indispensable  to  the  enjoyment 
of  the  rights  of  life,  liberty  and  the  pursuit  of  happiness ; 
and,  whereas,  in  the  recognition  of  this  principle,  this  gov- 
ernment has  freely  received  emigrants  from  all  nations,  and 
invested  them  with  the  rights  of  citizenship;  and  whereas 
it  is  claimed,  that  such  American  citizens,  with  their  de- 
scendants, are  subjects  of  foreign  States,  owing  allegiance 
to  the  governments  thereof ;  and  whereas  it  is  necessary  to 
the  maintenance  of  public  peace  that  this  claim  of  for- 
eign allegiance  should  be  promptly  and  finally  disavowed  ; 
therefore,  be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  United  States  of  America,  in  Congress 
assembled,  that  any  declaration,  instruction,  opinion,  order 
or  decision  of  any  officer  of  this  government,  which  denies, 
restricts,  impairs  or  questions  the  right  of  expatriation  is 
hereby  declared  inconsistent  with  the  fundamental  prin- 
ciples of  this  government."  1 

The  United  States  government  has  actively  sought  the 
establishment  of  treaties  with  other  countries,  in  which  the 
absolute  right  of  expatriation  is  unqualifiedly  recognized  ; 
and  such  great  success  has  attended  these  efforts,  that 
expatriation  may  now  be  asserted  to  be  a  recognized  inter- 
national right,  which  no  government  can  deny.2 

§  55.  Naturalization.  — In  order  that  one  may  expatri- 
ate himself,  he  must,  by  naturalization,  become  the  citizen 

iam's  case,  2  Cranch,  82,  note ;  Murray  v.  The  Charming  Betsey,  2  Cranch, 
64;  The  Santlssima  Trinidad,  7  Wheat.  283;  United  Stalest?.  Gillies,! 
Pet,  C.  C.  169;  Ainslee  v.  Martin,  9  Mass.  454. 

1  Act  of  July  27,  1868,  15  Stat.  at  Large,  223,  224. 

8  The  United  States  have  entered  into  such  treaties  with  almost  all  the 
countries  of  Europe. 
§   55 


PROHIBITION   OF   EMIGRATION.  169 

of  another  State.  International  law  does  not  recognize  the 
right  to  become  a  cosmopolitan.  But  because  expatriation 
is  recognized  as  a  right  indispensable  to  the  enjoyment  of 
the  rights  of  life,  liberty,  and  the  pursuit  of  happiness,  and 
which  cannot  be  abridged  or  denied  to  any  one,  it  does  not 
follow  that  one  has  a  natural  and  absolute  right  to  become 
the  citizen  of  any  State  which  he  should  select.  A  State 
has  as  absolute  a  right  to  determine  whom  it  shall  make 
citizens  by  naturalization,  as  the  individuals  have  to  deter- 
mine of  what  State  they  will  be  citizens.  Citizenship  by 
birth  within  the  country  does  not  depend  upon  the  will  of 
society.  By  a  sort  of  inheritance  the  natural-born  citizen 
acquires  his  right  of  citizenship.  But  when  a  foreigner 
applies  for  naturalization,  his  acquisition  of  a  new  citizen- 
ship depends  upon  the  agreement  of  the  two  contracting 
parties. 

The  State,  therefore,  has  the  unqualified  right  to  deny 
citizenship  to  any  alien  who  may  apply  therefor,  and  the 
grounds  of  the  objection  cannot  be  questioned.  The  alien 
has  no  political  rights  in  the  State,  and  he  cannot  attack 
the  motive  of  the  State  in  rejecting  him. 

§56.  Prohibition  of  emigration. — Political  economy 
teaches  us  that  national  disaster  may  ensue  from  an  exces- 
sive depopulation  of  the  country.  When  the  population 
of  a  country  is  so  small  that  its  resources  can  not  be  de- 
veloped, it  is  an  evil  which  emigration  in  any  large  degree 
would  render  imminent ;  and  the  temptation  would,  under 
such  circumstances,  be  great  to  prohibit  and  restrain  the 
emigration  to  other  lands,  while  the  impulse  would  increase 
in  proportion  to  the  growth  of  the  evil  of  depopulation. 
Has  the  State  the  right  to  prohibit  emigration,  and  prevent 
it  by  the  institution  of  the  necessary  police  surveillance? 
It  cannot  be  questioned  that  the  State  may  deny  the  right 
of  emigration  to  one  who  owes  some  immediate  service 
to  the  State,  as  for  example  in  the  case  of  war  when 

§  56 


170  REGULATIONS    OF    RIGHTS    OF    CITIZENSHIP. 

one  has  been  drafted  for  the  army,  or  where  one  under  the 
laws  of  the  country  is  bound  to  perform  some  immediate 
military  service.1  But  it  would  seem,  with  this  exception, 
that  the  natural  and  unrestricted  right  of  emigration  would 
be  recognized  as  a  necessary  consequence  of  the  recognition 
of  the  right  of  expatriation.  If  expatriation  is  indispensa- 
ble to  the  enjoyment  of  the  rights  of  life,  liberty  and  the 
pursuit  of  happiness,  the  right  of  emigration  must  be  more 
essential;  for  expatriation  necessarily  involves  emigration, 
although  emigratiom  may  take  place  without  expatriation. 
But  this  right  of  prohibition  was  once  generally  claimed 
and  exercised  and  Russia  still  exercises  the  right. 2 

§  57.  Compulsory  emigration.  —  General  want  and  suf- 
fering may  be  occasioned  by  overpopulation.  Indeed,  ac- 
cording to  the  Malthusian  theory,  excessive  population  is 
the  great  and  chief  cause  of  poverty.  From  the  standpoint 
of  public  welfare,  it  would  seem  well  for  the  State  to  de- 
dermine  how  many  and  who,  should  remain  domiciled  in 
the  country,  in  order  that  the  population  may  be  regulated 
and  kept  within  the  limits  of  possible  well-being,  and  trans- 
port the  excess  of  the  population  to  foreign  uninhabited 
lands,  or  to  other  parts  of  the  same  country,  which  are 
more  sparsely  settled.  But  from  the  standpoint  of  the  in- 
dividual and  of  his  rights,  this  power  of  control  assumes  a 
different  aspect.  If  government  is  established  for  the  bene- 
fit of  the  individual,  and  society  is  but  a  congregation  of 
individuals  for  their  mutual  benefit;  once  the  individual  is 
recognized  as  a  part  of  the  body  politic,  he  has  as  much 
right  to  retain  his  residence  in  that  country  as  his  neighbor; 
and  there  is  no  legal  power  in  the  State  to  compel  him  to 
migrate,  in  order  that  those  who  remain  may  have  more 

1  The  compulsory  military  service  for  four  of  the  best  years  of  a  man's 
life  has  been  the  chief  moving  cause  of  emigration  of  the  Germans. 

2  Phillemore  International  Law,  348,  349. 

§   57 


COMPULSORY   EMIGRATION.  171 

breathing  space.     Let  those  emigrate  who  feel  the  need  of 
more  room. 

Another  cause  of  evil,  which  prompts  the  employment  of 
the  remedy  of  compulsory  emigration,  would  be  an  ineradi- 
cable antagonism  serious  enough  to  cause  or  to  threaten 
social  disorder  and  turmoil.  Can  the  government  make  a 
forced  colonization  of  one  or  the  other  of  the  antagonistic 
races?  This  is  a  more  stubborn  evil  than  that  which  arises 
from  excessive  population  ;  for  want,  especially  when  the 
government  offers  material  assistance,  will  drive  a  large 
enough  number  out  of  the  country  to  keep  down  the  evil. 
The  only  modern  case  of  forcible  emigration,  known  to  his- 
tory, is  that  of  the  Acadians.  Nova  Scotia  was  originally  a 
French  colony  and  when  it  was  conquered  by  the  British,  a 
large  non-combatant  population  of  French  remained,  but 
refused  to  take  the  oath  of  allegiance.  The  French  in  the 
neighboring  colonies  kept  up  communication  with  these 
French  inhabitants  of  Nova  Scotia  and,  upon  the  promise  to 
recapture  the  province,  incited  them  to  a  passive  resistance 
of  the  British  authority.  The  presence  of  such  a  large  hostile 
population  certainly  tended  to  make  the  British  hold  upon 
Nova  Scotia  very  insecure,  and  the  English  finally  compelled 
these  French  people  to  migrate.  While  the  circumstances 
tend  to  mitigate  the  gravity  of  this  outrage  upon  the  rights  of 
the  individual, the  act  has  been  universally  condemned.1  The 

1  While  the  above  was  being  written,  the  world  was  startled  by  the 
expulsion  from  France  of  the  Orleans  and  Bonaparte  princes,  who  are  in 
the  line  of  inheritance  of  the  lost  crown.  These  princes  were  not 
charged  with  any  offense  against  the  existing  government  of  France,  or 
against  France.  They  were  monarchists,  and,  it  is  true,  they  refused  to 
abjure  their  claims  to  the  throne  of  France.  But,  beyond  the  formation 
of  marital  alliances  with  the  reigning  families  of  Europe,  they  were  not 
charged  with  any  actions  hostile  or  menacing  to  the  present  govern- 
ment. The  ineradicable  antagonism  between  monarchy  and  repub- 
licism  may  possibly  furnish  justification  for  these  expulsions;  but  one 
who  has  thoroughly  assimilated  the  doctrine  of  personal  liberty  can 
hardly  escape  the  conclusion  that  they  were  at  least  questionable  exer- 
cises of  police  power. 

§    57 


172  REGULATIONS    OF    RIGHTS    OF    CITIZENSHIP. 

State  has  no  right  to  compel  its  citizens  to  emigrate  for 
any  cause,  except  as  a  punishment  for  crime.  It  may  per- 
suade and  offer  assistance,  but  it  cannot  employ  force  in 
effecting  emigration,  whatever  may  be  the  character  of  the 
evil,  which  threatens  society,  and  which  prompts  a  com- 
pulsory emigration  of  a  part  of  its  population. 

But  it  does  not  follow  from  this  position  that  the  State 
has  not  the  right  to  compel  the  emigration  of  residents  of 
the  country,  who  are  not  citizens.  The  obligation  of  the 
State  to  resident  aliens  is  only  temporary,  consists  chiefly 
in  a  guaranty  of  the  protection  of  its  laws,  as  long  as  the 
residence  continues,  and  does  not  deprive  the  State  of  the 
power  to  terminate  the  residence  by  their  forcible  removal. 
They  can  be  expelled,  whenever  their  continued  residence 
for  any  reason  becomes  obnoxious  or  harmful  to  the  citizen 
or  to  the  State. 

Although  the  aborigines  of  a  country  may  not,  under  the 
constitutional  law  of  the  State,  be  considered  citizens,1  they 
are  likewise  not  alien  residents  and  cannot  be  expelled  from 
the  country,  or  forcibly  removed  from  place  to  place,  except 
in  violation  of  individual  liberty.  But  the  treatment  offered 
by  the  United  States  government  to  the  Indians  would  in- 
dicate that  they  have  reached  a  different  conclusion.  The 
forcible  removal  of  the  Indians  from  place  to  place,  in  vio- 
lation of  the  treaties  previously  made  with  them, —  although 
there  is  a  pretense  that  the  treaties  have  become  forfeited 
on  account  of  their  wrongful  acts,  — differs  in  character  but 

1  This  is  the  rule  of  law  in  this  country  in  respect  to  the  legal  status 
of  the  Indian.  As  long  as  he  continues  his  connection  with  his  tribe, 
and  consequently  occupies  towards  the  United  States  a  more  or  less  for- 
eign relation,  it  would  be  unwise  as  well  as  illogical  to  invest  him  with 
the  rights  of  citizenship.  Goodell  v.  Jackson,  20  Johns.  693, 710 ;  McKay 
w.  Campbell,  2  Sawyer,  118.  But  it  is  claimed,  with  much  show  of  reason 
for  it,  that  as  soon  as  he  abandons  the  tribal  relation,  and  subjects  him- 
self to  the  jurisdiction  of  our  government,  he  becomes  as  much  a  citizen 
of  the  United  States  as  any  other  native.  See  Story  on  Constitution, 
§  1933. 

§    57 


PROHIBITION   OF   IMMIGRATION.  173 

little  from  the  expulsion  of  the  Acadians,  for  whose  suffer- 
ings the  world  felt  a  tender  sympathy. 

§58.  Prohibition  of  immigration.  —  Since  the  State 
owes  no  legal  duty  to  a  foreigner,  and  the  foreigner  has  no 
legal  right  to  a  residence  in  a  country  of  which  he  is  not  a 
citizen,  a  government  may  restrain  and  even  absolutely 
prohibit  immigration,  if  that  should  be  the  policy  of  the 
State.  The  policy  of  each  State  will  vary  with  its  needs.  In 
this  country,  the  need  of  immigration  has  been  so  great  that 
we  offer  the  greatest  possible  inducements  to  immigrants,  to 
settle  in  our  midst.  So  general  and  unrestricted  has  immi- 
gration been  in  the  past,  that  a  large  class  of  our  people  have 
denied  the  right  to  refuse  ingress  to  any  foreigner,  unless  he 
is  a  criminal.  As  a  sentiment,  in  conformity  with  the  uni- 
versal brotherhood  of  man,  this  position  may  be  justified  ; 
but,  as  a  living  legal  principle,  it  cannot  be  sustained.  The 
government  of  a  country  must  protect  its  own  people  at  all 
hazards.  Races  are  often  too  dissimilar  to  permit  of  their 
being  brought  into  harmonious  relations  with  each  other 
under  one  government ;  and  the  presence  in  the  same 
country  of  antagonistic  races  always  engenders  social 
and  economical  disturbances.  If  they  are  already  citi- 
zens of  the  same  country,  as,  for  example,  the  negroes 
and  the  whites  of  the  Southern  States,  there  is  no  help 
for  the  evil  but  a  gradual  solution  of  the  problem  by 
self-adaptation  to  each  other,  or  a  voluntary  exodus  of 
the  weaker  race.  But  when  an  altogether  dissimilar  race 
seeks  admission  to  the  country,  not  being  citizens,  the 
State  may  properly  refuse  them  the  privilege  of  immi- 
gration. And  this  is  the  course  adopted  by  the  Ameri- 
can government  towards  the  Chinese  who  threaten  to 
invade  and  take  complete  possession  of  the  Pacific  coast. 
After  making  due  allowance  for  the  exaggerations  of  the 
evil,  there  can  be  no  doubt  that  the  racial  problem,  involved 
in  the  Chinese  immigration,  was  sufficiently  serious  to  jus- 

«  58 


174  REGULATIONS   OF   RIGHTS   OF   CITIZENSHIP. 

tify  its  prohibition.  The  economical  problem,  arising  from 
a  radical  difference  in  the  manners  and  mode  of  life  of  the 
Chinese,  not  to  consider  the  charges  of  their  moral  deprav- 
ity, threatened  to  disturb  the  industrial  and  social  condi- 
tions of  those  States,  to  the  great  injury  of  the  native 
population.  It  was  even  feared  that  the  white  population, 
not  being  able  to  subsist  on  the  diet  of  the  Chinese,  and 
consequently  being  unable  to  work  for  as  low  wages,  would 
be  forced  to  leave  the  country ;  and  as  they  moved  eastward  ; 
the  Chinese  would  take  their  place,  until  finally  the  whole 
country  would  swarm  with  the  almond-eyed  Asiatic.  Self- 
preservation  is  the  first  law  of  nature,  with  States  and 
societies,  as  with  individuals.  It  can  not  be  doubted  that 
the  act  of  Congress,  which  prohibited  all  future  Chinese 
immigration,  was  within  the  constitutional  powers  of  the 
United  States. 

A  number  of  decisions  have  been  rendered  under  the 
Chinese  Exclusion  Act,  in  all  of  which  the  constitutionality 
of  the  act  has  been  sustained.  In  the  case  of  In  re  Chae 
Chan  Ping,1  the  petitioner  had  been  in  this  country  and  had 
departed  prior  to  the  enactment  of  the  exclusion  act,  with 
a  certificate  of  identification  provided  for  by  the  prior  law. 
The  exclusion  act  expressly  prohibits  re-entry  of  such  a 
person,  who  had  not  returned  prior  to  the  enactment  of 
the  exclusion  act.  The  court  say  :  — 

"  The  certificate,  it  is  urged,  is  a  contract  entered  into 
between  the  United  States  and  the  petitioner  in  pursuance  of 
the  restriction  act,  which  vests  him  with  a  right  that  cannot 
now  be  divested  under  the  general  principles  of  public  jus- 
tice, even  though  the  constitutional  provision  against  pass- 
ing laws  impairing  the  obligations  of  contracts  is  in  terms 
only  restrictive  upon  the  States.  We  think  this  is  not  the 
correct  view.  There  is  no  contract  between  the  United 
States  and  individual  Chinese  laborers  at  all.  The  Chinese 

1  36  Fed.  431. 
§  58 


PROHIBITION   OF    IMMIGRATION.  175 

laborers  obtain  no  rights  under  the  acts  of  Congress  beyond 
what  is  secured  to  them  by  the  treaties.  There  is  no  con- 
sideration moving  from  them,  individually  or  collectively, 
under  the  act  of  Congress,  upon  which  a  contract  was 
founded.  All  the  rights  they  have  are  derivative,  namely, 
merely  resting  upon  the  stipulations  of  the  treaty  between 
the  two  governments,  which  are  the  contracting,  and  only 
contracting,  parties.  *  *  *  The  certificates  are  instru- 
ments of  evidence,  issued  to  afford  convenient  proof  of  the 
identity  of  the  party  entitled  to  enjoy  the  privileges  secured 
by  the  treaties,  and  to  prevent  frauds,  and  they  are  so  desig- 
nated in  the  act.  *  *  *  To  call  these  acts  and  certificates 
provided  in  pursuance  thereof  a  contract  would  be  an  abuse 
of  language.  As  between  the  two  governments  treaties  are 
laws,  and  they  confer  rights  and  privileges  as  long  as  they 
are  in  force ;  and  doubtless  some  rights  accrue  and  become 
indefeasibly  vested  by  covenants  or  stipulations  that  have 
ceased  to  be  executory  and  have  become  fully  executed,  as 
in  the  case  of  title  to  property  acquired  thereunder.  But 
we  do  not  regard  the  privilege  of  going  and  coming  from 
one  country  to  another  as  one  of  this  class  of  rights.  The 
being  here  with  the  right  of  remaining  is  one  thing,  but 
voluntarily  going  away  with  a  right  at  the  time  to  return  is 
quite  another." 

In  other  cases,1  it  was  held  that  the  Chinese  Exclusion 
Act  of  Congress  of  1892,  was  not  unconstitutional,  in  that 
it  provided  that  the  person  charged  with  the  violation  of 
the  act  is  to  be  presumed  guilty,  i.  e.,  of  being  unlawfully 
in  this  country,  without  the  presentation  of  any  evidence 
against  him,  until  he  established  his  innocence  or  right  to 
be  in  this  country  by  affirmative  evidence.  The  reason 
which  was  assigned  for  justifying  this  departure  from 
the  common  law  in  respect  to  the  burden  of  proof  in 
criminal  cases,  is  that  the  facts  which  constitute  a  de- 

1  In  re  Sing  Lee,  54  Fed.  334,  and  In  re  Ching  Jo,  Id. 

§    58 


176  REGULATIONS   OF   RIGHTS   OF   CITIZENSHIP. 

fense  are  peculiarly  within  the  knowledge  of  the  person 
charged.1 

The  United  States  government  have  also  instituted  police 
regulations  for  the  purpose  of  preventing  pauper  immigra- 
tion, and  when  an  immigrant  is  without  visible  means  of 
support,  the  steamship  company  which  transported  him  is 
required  to  take  him  back.  The  purpose  of  these  regula- 
tions itself  suggests  the  reasons  that  might  be  advanced  in 
justification  of  them,  and,  therefore,  no  statement  of  them 
is  necessary. 

§  59.  The  public  duties  of  a  citizen.  —  In  return  for  the 
protection  guaranteed  to  the  citizen,  he  is  required  to  do 
whatever  is  reasonable  and  necessary  in  support  of  the  gov- 
ernment and  the  promotion  of  the  public  welfare.  It  will 
not  be  necessary  to  enter  into  details,  for  these  duties  vary 
with  a  change  in  public  exigencies.  The  object  of  taxation 
is  treated  more  particularly  in  a  subsequent  section.2  The 
ordinary  public  duties  of  an  American  citizen  are  to  assist 
the  peace  officers  in  preserving  the  public  order  and  serving 
legal  processes,  and  to  obey  all  commands  of  the  officers  to 
aid  in  the  suppression  of  all  riots;  insurrections  and  other 
breaches  of  the  peace ;  to  serve  as  jurors  in  the  courts  of 
justice,  to  perform  military  service  in  time  of  peace,  as 
well  as  in  war.  It  is  common  for  the  States  to  require  its 
male  citizens  to  enroll  themselves  in  the  State  militia,  and 
to  receive  instruction  and  practice  in  military  tactics;  and  in 
time  of  war  there  can  be  no  doubt  of  the  power  of  the  gov- 
ernment to  compel  a  citizen  to  take  up  arms  in  defense  of 
the  country  against  the  attacks  of  an  enemy,  in  the  same 
manner  as  it  may  require  the  citizen  to  aid  in  suppressing 
internal  disorders.8  At  an  earlier  day,  it  was  also  a  com- 

1  But  see,  apparently,  contra,  as  to  what  the  act  provides  in  respect  to 
the  burden  of  proof,  United  States  v.  Long  Hop,  55  Fed.  58. 

2  See  post,  §  160  et  seq. 

*  But  defensive  warfare  must  in  this  connection  be  distinguished 
§  59 


THE   PUBLIC    DUTIES    OF    A    CITIZEN.  177 

mon  custom  to  require  of  the  citizens  of  a  town  or  city  the 
duty  of  assisting  in  the  quenching  of  accidental  fires  and  the 
prevention  of  conflagrations ;  and  in  some  of  the  States 
(notably  South  Carolina)  every  male  citizen,  between  cer- 
tain ages,  was  at  one  time  required  to  be  an  active  member 
of  a  militia  or  fire  company.1 

It  was  also  at  one  time  the  common  duty  of  a  citizen  to 
perform,  or  supply  at  his  expense,  labor  upon  the  public 
roads,  in  order  to  keep  them  in  repairs.8  But  this  specific 
duty  is  each  day  becoming  more  uncommon,  and  the  re- 
pairs are  being  made  by  employees  of  the  State  or  municipal 
community,  whose  wages  are  paid  out  of  the  common  fund. 
Indeed,  the  general  tendency  at  the  present  day  is  to  relieve 
the  citizen  of  the  duty  of  performing  these  public  duties  by 
the  employment  of  individuals,  who  are  specially  charged 
with  them,  and  perform  them  as  a  matter  of  business. 
Even  in  regard  to  the  matter  of  military  service  in  time  of 
war  this  tendency  is  noticeable.  Whenever  a  draft  is  made 
by  the  government  for  more  men,  and  one  whose  name  is 

from  offensive  warfare.  The  duty  of  the  citizen  to  repel  an  attack  upon 
his  country  is  clear,  but  it  is  certainly  not  considered  in  the  United  States 
a  duty  of  the  citizen  to  aid  the  government  in  the  prosecution  of  an  offens- 
ive war,  instituted  for  the  purpose  of  aggrandizement.  But  the  question 
involves  the  practical  difficulty  of  determining  which  party  in  a  particular 
war  is  on  the  defensive,  and  which  is  the  attacking  party.  It  is  not  nec- 
essary for  the  territory  of  one's  country  to  be  invaded,  in  order  that  the 
war  may  be  offensive.  Substantial  and  valuable  international  rights  may 
be  trespassed  without  a  blow  being  struck  or  a  foot  of  land  Invaded;  and 
usually  both  parties  claim  to  be  on  the  defensive.  But  the  difficulty  in 
answering  this  question  of  fact  does  not  affect  the  accuracy  of  the  theo- 
retic distinction,  although  it  does  take  away  its  practical  value. 

1  But  it  is  now  found  to  be  more  profitable,  in  combating  the  danger 
of  fire  in  municipal  life,  to  employ  men  who  are  specially  charged  with  the 
performance  of  this  duty.     Voluntary,  or  unprofessional,  fire  departments 
are  now  to  be  found,  in  the  United  States,  only  in  the  villages  and  small 
towns. 

2  In  Ohio,  it  was  held  that  a  statute,  which  required  two  days'  labor 
on  the  public  roads,  did  not  violate  the  provision  of  the  State  bill  of 
rights,  that  there  shall  be  no  involuntary  servitude  in  the  State.    Den- 
nis v.  Simon,  51  Ohio  St.  233 

12  §    59 


178  REGULATIONS   OF   RIGHTS    OF    CITIZENSHIP. 

found  in  the  list  desires  to  avoid  the  personal  performance 
of  this  public  duty,  he  is  permitted  to  procure  a  substitute. 
The  duty  of  acting  as  juror  is  about  the  only  public  duty, 
whose  performance  is  still  required  to  be  personal,  and  even 
that  is  somewhat  in  danger  of  substitutive  performance. 
The  flimsy  and  unreasonable  excuses,  too  often  given  and 
received  for  discharge  from  jury  duty,  are  fast  paving  the 
way  to  the  appointment  of  professional  jurymen. 
§  59 


CHAPTEK    VII. 

STATE  REGULATION  OF  MORALITY  AND  RELIGION. 

SECTION  60.  Crime  and  vice    distinguished  —  Their  relation  to   police 
power. 

61.  Sumptuary  laws. 

62.  Church  and  State  —  Historical  synopsis. 

63.  Police  regulation  of  religion  —  Constitutional  restrictions. 

64.  State  control  of  churches  and  congregations. 

65.  Religious  criticism  and  blasphemy  distinguished. 

66.  Permissible  limitations  upon  religious  worship. 

67.  Religious    discrimination  in   respect  to  admissibility    of 

testimony. 

68.  Sunday  laws. 

§  60.  Crime  and  vice  distinguished  —  Their  relation 
to  police  power.  —  In  legal  technics,  crime  is  any  act  which 
involves  the  violation  of  a  public  law,  and  which  by  theory 
of  law  constitutes  an  offense  against  the  State.  Crimes 
are  punished  by  means  of  prosecution  by  State  officers. 
When  an  act  violates  some  private  right,  and  it  is  either  so 
infrequent,  or  so  easily  controlled  by  private  or  indi- 
vidual prosecutions,  that  the  safety  of  society  does  not 
require  it  to  be  declared  a  crime,  and  the  subject  of  a 
criminal  prosecution,  it  is  then  denominated  a  trespass, 
or  tort.  The  same  act  may  be  both  a  tort  and  a  crime ;  and 
with  the  exception  of  those  crimes  which  involve  the  vio- 
lation of  strictly  public  rights,  such  as  treason,  malfeas- 
ance in  office,  and  the  like,  all  crimes  are  likewise  torts. 
The  same  act  works  an  injury  to  the  State  or  to  the  individ- 
ual whose  right  is  invaded,  and  according  as  we  contemplate 
the  injury  to  the  State  or  to  the  individual,  the  act  is  a 
crime  or  a  tort.  The  injury  to  the  State  consists  in  the 
disturbance  of  the  public  peace  and  order.  The  injury  to 
the  individual  consists  in  the  trespass  upon  some  right. 

§  60  (179) 


180      STATE   REGULATION    OF   MORALITY   AND    RELIGION. 

But,  from  either  standpoint,  the  act  must  be  considered  as 
an  infringement  of  a  right.  The  act  must  constitute  an 
injuria,  i.  e.y  the  violation  of  a  right. 

The  distinction,  thus  given,  between  a  crime  and  a  tort  is 
purely  technical,  and  proceeds  from  the  habit  of  the  com- 
mon-law jurist  to  account  for  differences  in  legal  rules 
and  regulations  by  fictitious  distinctions,  which  were  in  fact 
untrue.  There  is  no  essential  difference  between  a  crime 
and  a  tort,  except  in  the  remedy.  No  act  can  be  properly 
called,  either  a  crime  or  a  tort,  unless  it  be  a  violation  of 
some  right ;  and  with  the  exception  of  those  crimes,  which 
consist  in  the  violation  of  some  public  right,  such  as  treason, 
crimes  are  nothing  more  than  violations  of  private  rights, 
which  are  made  the  subject  of  public  prosecution,  because 
individual  prosecution  is  deemed  an  ineffectual  remedy. 
The  idea  of  an  injury  to  the  State,  as  the  foundation  for  the 
criminal  prosecution  is  a  pure  fiction,  indulged  in  by  the 
jurists  in  order  to  conform  to  the  iron  cast  maxim,  that  no 
one  but  the  party  injured  can  maintain  an  action  against  the 
wrong-doer.  A  crime,  then,  is  a  trespass  upon  some  right, 
public  or  private,  and  the  trespass  is  sought  to  be  redressed 
or  prosecuted,  whether  the  remedy  be  a  criminal  prosecution 
or  a  private  suit. 

A  vice,  on  the  other  hand,  consists  in  an  inordinate,  and 
hence  immoral,  gratiflcation  of  one's  passions  and  desires. 
The  primary  damage  is  to  one's  self.  When  we  contem- 
plate the  nature  of  a  vice,  we  are  not  conscious  of  a  trespass 
upon  the  rights  of  others.  If  the  vice  gives  rise  to  any 
secondary  orconsequential  damage  to  others,  we  are  only  able 
to  ascertain  the  effect  after  a  more  or  less  serious  delibera- 
tion. An  intimate  acquaintance  with  sociology  reveals  the 
universal  interdependence  of  individuals  in  the  social  state  ; 
no  man  liveth  unto  himself,  and  no  man  can  be  addicted  to 
vices,  even  of  the  most  trivial  character,  without  doing 
damage  to  the  material  interests  of  society,  and  affecting 
each  individual  of  the  community  to  a  greater  or  less  degree. 
§  60 


CRIME    AND    VICE    DISTINGUISHED,  ETC.  181 

But  the  evils  to  society,  flowing  from  vices,  are  indirect 
and  remote  and  do  not  involve  trespasses  upon  rights.  The 
indolent  and  idle  are  actual  burdens  upon  society,  if  they 
are  without  means  of  support,  and  in  any  event  society 
suffers  from  them  because  they  do  not,  as  producers,  con- 
tribute their  share  to  the  world's  wealth.  We  may  very 
well  conceive  of  idleness  becoming  so  common  as  to 
endanger  the  public  welfare.  But  these  people  are  not 
guilty  of  the  crime  of  indolence ;  we  can  only  charge  them 
with  the  vice  of  idleness. 

Now,  in  determining  the  scope  of  police  power,  we  con- 
cluded that  it  was  confined  to  the  imposition  of  burdens  and 
restrictions  upon  the  rights  of  individuals,  in  order  to  pre- 
vent injury  to  others;  that  it  consisted  in  the  application  of 
measures  for  the  enforcement  of  the  legal  maxim,  sic  utere 
tuo,  ut  alienum  non  loedas.  The  object  of  police  power  is 
the  prevention  of  crime,  the  protection  of  rights  against 
the  assaults  of  others.  The  police  power  of  the  government 
cannot  be  brought  into  operation  for  the  purpose  of  exact- 
ing obedience  to  the  rules  of  morality,  and  banishing  vice 
and  sin  from  the  world.  The  moral  laws  can  exact  obedi- 
ence only  inforo  conscientice.  The  municipal  law  has  only 
to  do  with  trespasses.  It  cannot  be  called  into  play  in 
order  to  save  one  from  the  evil  consequences  of  his  own 
vices,  for  the  violation  of  a  right  by  the  action  of  another 
must  exist  or  be  threatened,  in  order  to  justify  the  interfer- 
ence of  law.  It  is  true  that  vice  always  carries  in  its  train 
more  or  less  damage  to  others,  but  it  is  an  indirect  and  re- 
mote consequence;  it  is  more  incidental  than  consequential. 
At  least  it  is  so  remote  that  very  many  other  causes  co-oper- 
ate to  produce  the  result,  and  it  is  difficult,  if  not  impossi- 
ble, to  ascertain  which  is  the  controlling  and  real  cause.1 

1  Thus  the  intemperance  of  a  man  may  result  in  the  suffering  of  his 
wife  from  want,  because  of  his  consequent  inability  to  earn  the  requisite 
means  of  support.  But  she  may  have  been  equally  responsible  for  her 
own  suffering  on  account  of  her  recklessness  in  marrying  him,  or  she  may 

§   60 


182      STATE   REGULATION   OF   MORALITY   AND   RELIGION. 

Because  of  this  uncertainty,  and  practical  inability  to 
determine  responsibility,  it  has  long  been  established  as  the 
invariable  rule  of  measuring  the  damages  to  be  recovered 
in  an  action  for  the  violation  of  a  right,  that  only  the  proxi- 
mate and  direct  consequences  are  to  be  considered.  In 
jure  non  remota  causa,  sed  proxima  spectalur.  If  this  is  a 
necessary  limitation  upon  the  recovery  of  damages  where  a 
clearly  established  legal  right  is  trespassed  upon,  there  surely 
is  greater  reason  for  its  application  to  a  case  where,  there 
is  no  invasion  of  a  right,  in  a  case  of  damnum  absque  injuria. 
It  is  apparently  conceded  by  all,  that  vice  cannot  be  pun- 
ished unless  damage  to  others  can  be  shown  as  accruing  or 
threatening.  It  cannot  be  made  a  legal  wrong  for  one  to 
become  intoxicated  in  the  privacy  of  his  room,  when  the 
limitation  upon  his  means  did  not  make  drunkenness  an 
extravagance.  If  he  has  no  one  dependent  upon  him,  and 
does  not  offend  the  sensibility  of  the  public,  by  displaying 
his  intoxication  in  the  public  highways,  he  has  committed 
no  wrong,  i.  e.,  he  has  violated  no  right,  and  hence  he  can- 
not be  punished.1  When,  therefore,  the  damage  to  others, 
imputed  as  the  cause  to  an  act  in  itself  constituting  no  tres- 
pass, is  made  the  foundation  of  a  public  regulation  or  pro- 
hibition of  that  act,  it  must  be  clearly  shown  that  the  act  is 
the  real  and  predominant  cause  of  the  damage.  The  inter- 
vention of  so  many  co-operating  causes  in  all  cases  of 
remote  damage  makes  this  a  practical  impossibility.  Cer- 
tainly, the  act  itself  cannot  be  made  unlawful,  because  in 
certain  cases  a  remote  damage  is  suffered  by  others  on 
account  of  it. 

be  extravagant  and  wasteful ;  or  she  may  by  her  own  conduct  have  driven 
him  into  intemperance,  and  many  other  facts  may  be  introduced  to  ren- 
der it  very  doubtful,  to  which  of  these  moral  delinquencies  her  suffering 
might  be  traced  as  the  real  moving  cause. 

1  See  Commonwealth  c.  Morrisey,  157  Mass.  471 ;  City  of  Gallatln  v.  Tar- 
water,  143  Mo.  40,  for  judicial  expressions  of  the  constitutional  authority 
of  the  legislature  and  city  councils  to  punish  drunkenness.    In  the  latter 
case,  the  punishment  was  expressly  limited  to  public  drunkenness. 
§    60 


CRIME    AND   VICE   DISTINGUISHED,  ETC.  183 

It  may  be  urged  that  this  rule  for  the  measurement  of 
damages  may  be  changed,  and  the  damages  imputed  to  the 
remotecause,  without  violating  any  constitutional  limitation, 
and  such  has  been  the  ruling  of  the  New  York  Court  of 
Appeals.1 

If  this  rule  rested  purely  upon  the  will  of  the  governing 

1  Bertholf  v.  O'Reilly,  74  N.  Y.  309,  509  (30  Am.  Rep.  323).  In  this 
case  it  was  held  that  the  legislature  has  power  to  create  a  cause  of  action 
for  damages,  in  favor  of  one  who  was  injured  in  person  or  property  by 
the  act  of  an  intoxicated  person,  against  the  owner  of  real  property,  whose 
only  connection  with  the  injury  is  that  he  leased  premises,  where  liquor 
causing  the  intoxication  was  sold  or  given  away,  with  the  knowledge  that 
the  intoxicating  liquors  were  to  be  sold  thereon.  "The  act  of  18731s 
not  invalid  because  it  creates  a  right  of  action  and  imposes  a  liability  not 
known  to  the  common  law.  There  is  no  such  limit  to  legislative  power. 
The  legislature  may  alter  or  repeal  the  common  law.  It  may  create  new 
offenses,  enlarge  the  scope  of  civil  remedies,  and  fasten  the  responsibility 
for  in j  uries  upon  persons  against  whom  the  common  law  gives  no  remedy. 
We  do  not  mean  that  the  legislature  may  impose  upon  one  man  liability 
for  an  injury  suffered  by  another,  with  which  he  has  no  connection.  But 
it  may  change  the  rule  of  the  common  law,  which  looks  only  to  the  proxi- 
mate cause  of  the  mischief,  in  attaching  legal  responsibility,  and  allow  a 
recovery  to  be  had  against  those  whose  acts  contributed,  though  remotely, 
to  produce  it.  This  is  what  the  legislature  had  done  in  the  act  of  1873. 
That  there  is  or  may  be  a  relation  in  the  nature  of  cause  and  effect, 
between  the  act  of  selling  or  giving  away  intoxicating  liquors,  and  the 
injuries  for  which  a  remedy  is  given,  is  apparent,  and  upon  this  relation 
the  legislature  has  proceeded  in  enacting  the  law  in  question.  It  is  an 
extension  by  the  legislature,  of  the  principles  expressed  in  the  maxim 
sic  utere  tuo  ut  alienum  non  Icedas  to  cases  to  which  it  has  not  before 
been  applied,  and  the  propriety  of  such  an  application  is  a  legislative  and 
not  a  judicial  question."  Somewhat  similar  to  the  rule  laid  down  in 
Bertholf  v.  O'Reilly,  is  that  which  subjects  to  criminal  liability  the  own- 
ers of  buildings,  and  their  agents,  who  let  property  to  persons  who 
they  know  will  use  the  property  for  the  purposes  of  prostitution.  When 
property  is  thus  leased,  with  knowledge  of  the  unlawful  use  to  which  it 
will  be  put,  the  party  leasing  becomes,  under  the  statutes  regulating  the 
same,  a  particeps  criminis,  and  the  cases  are  quite  numerous  in  which 
the  lessor  or  his  agent  has  under  such  circumstances  been  punished.  See 
State  v.  Frazier,  79  Me.  95;  State  ».  Smith,  15  R.  I.  24;  Troutraan  ». 
State,  49  N.  J.  L.  33;  People  v.  O'Melia,  67  Hun,  653;  Fisher  v.  State,  2 
Ind.  App.  865;  Borches  v.  State,  31  Tex.  Cr.  517;  Swaggart  ».  Territory, 
(Okl.  '98),  50  Pac.  96.  The  same  ruling  has  been  made  in  England. 
Hornsby  v.  Raggett  (1892),  1  Q.  B.  20. 

§    60 


184      STATE   REGULATION    OF   MORALITY    AND    RELIGION. 

power;  if  it  was  itself  a  police  regulation,  instituted  for  the 
purpose  of  preventing  excessive  and  costly  litigation,  its 
abrogation  would  be  possible.  But  it  has  its  foundation  in 
fact.  It  is  deduced  from  the  accumulated  experience  of  ages, 
that  the  proximate  cause  is  always  the  predominant  in  effect- 
ing the  result ;  it  is  a  law  of  nature,  immutable  and  unvary- 
ing.1 The  abrogation  of  this  rule  violates  the  constitutional 
limitation  "  no  man  shall  be  deprived  of  his  life,  liberty  or 
property,  except  by  due  process  of  law,"  when  in  pursuance 
thereof  one  is  imprisoned  or  fined  for  a  damage  which  he  did 
not  in  fact  produce.  The  inalienable  right  to  "  liberty  and 
the  pursuit  of  happiness  "  is  violated,  when  he  is  prohibited 
from  doing  what  does  not  involve  a  trespass  upon  others. 

In  order,  therefore,  that  vices  may  be  subjected  to  legal 
control  and  regulation,  it  will  be  necessary  to  show  that  it 
constitutes  a  trespass  upon  some  one's  rights,  or  proxi- 
mately  causes  damage  to  others,  and  that  is  held  to  be  a 
practical  impossibility.  Under  the  established  rules  of  con- 
stitutional construction,  it  is  quite  probable  that  proximate 
damage,  without  trespass  upon  rights,  may  be  made  action- 
able, and  the  vice  which  causes  it  to  be  prohibited,  without 
infringing  the  constitution;  but  the  further  practical  diffi- 
culty is  to  be  met  and  avoided,  that  a  trespass  upon  one's 
rights,  or  the  threatening  danger  of  such  a  trespass,  is  nec- 
essary to  procure  from  the  people  that  amount  of  enthusi- 
astic support,  without  which  a  law  becomes  a  dead  letter. 
It  is  the  universal  experience  that  laws  can  not  be  enforced 
which  impose  penalties  upon  acts  which  do  not  constitute 
infringements  upon  the  rights  of  others.  But  this  is  not  a 
constitutional  objection,  and  does  not  affect  the  binding 
power  of  the  law,  if  a  sufficient  moral  force  can  be  brought 
together  to  secure  its  enforcement.  This  is  a  question  of 
expediency,  which  can  only  be  addressed  to  the  discretion 
of  the  legislature. 

1  See  post,  §  126. 
§    60 


CRIME   AND   VICE   DISTINGUISHED,  ETC.  185 

The  courts  have  not  indorsed  the  principles  which  have 
been  set  forth  in  this  section,  on  which  the  distinction  here 
made,  between  vice  and  crime,  rests,  and  which  deny  to 
the  government  the  power  to  punish  vice  as  vice.  Pro- 
fanity is  punished;  rightly  when  it  is  indulged  in  on 
the  streets,  and  in  other  public  places.  But  the  Arkansas 
statute  on  profanity  does  not  confine  the  offense  to  swear- 
ing in  public.1  The  keeping  of  disorderly  houses  and 
places  of  gambling  is,  of  course,  prohibited,  because  it  is 
making  a  business  of  pandering  to  vices  ;  and,  for  that 
reason,  comes  properly  within  the  jurisdiction  of  the  police 
power.2  But  the  prohibitive  law  in  such  cases  is  not  now 
confined  to  the  offense  of  providing  the  means  of  indulgence 
in  vice.  It  makes  the  indulgence  in  these  vices  itself  a 
criminal  misdemeanor.  Thus,  it  is  made  a  criminal  mis- 
demeanor for  one  to  visit  a  house  of  ill-fame.3  And  the 
statutes  even  go  farther,  and  make  the  vice  of  fornication 
a  criminal  offense.4 

The  social  vice,  of  course,  involves  an  injury  to  society, 
of  a  strikingly  strong  character,  in  that  it  makes  probable 
an  increase  of  the  public  burden  by  the  birth  of  illegiti- 
mate children,  as  well  as  it  is  the  occasion  of  a  wrong 
to  the  children  so  born.  For,  under  the  long  existing 
legal  and  social  distinction  between  legitimate  and  illegiti- 
mate children,  parents  can  be  properly  charged  with  the 
commission  of  a  trespass  upon  the  reasonable  rights  of 
their  children,  when  they  bring  them  into  the  world  under 

1  Bodenhauer  v.  State,  60  Ark.  10. 

1  This  subject  Is  more  fully  discussed  elsewhere,  see  post,  §  121. 

8  State  ».  Botkin,  71  Iowa,  87;  Ex  parte  Johnson,  73  Cal.  228;  Com- 
monwealth v.  Ferry,  146  Mass.  203;  Weideman  v.  State,  4  Ind.  App.  397; 
Hawkins  v.  Lutton,  95  Wis.  492. 

*  Davis  v.  State,  92  Ga.  458;  Jackson  v.  State,  91  Wls.  253;  Mitchell 
».  State,  81  Ga.  458;  Gaunt  v.  State,  52  N.  J.  L.  178;  State  v.  Rinehart, 
106  N.  C.  787;  State  v.  Dukes,  119  N.  C.  782;  Ledbetter  v.  State,  29  Tex. 
App.  349;  Van  Dolsen  v.  State,  1  Ind.  App.  108;  State  v.  Austin,  108  N.  C« 
780;  Com.  v.  Kammerdiner,  165  Pa.  St.  222. 

§  60 


186      STATE    REGULATION   OF   MORALITY   AND   RELIGION. 

the  stigma  of  illegitimacy.  The  punishment  of  those  who 
indulge  in  the  social  vice  is  justifiable  on  these  grounds,  and 
is  properly  distinguished  from  such  strictly  personal  vices, 
involving  no  trespass  upon  the  rights  of  others,  such  as 
drunkenness.  But  the  distinction  is  not  always  recog- 
nized. 

It  is  true  that,  generally,  gambling  is  not  a  punishable 
offense,  when  it  is  practiced  in  the  confines  of  a  private 
residence.1  And  it  has  been  held  that  a  private  room  in  a 
hotel  or  inn  is  not  a  public  place,  so  that  a  game  of  poker, 
played  in  such  a  room  with  the  door  locked,  would  not 
be  a  punishable  offense.2  But  in  California,  the  poor  China- 
man cannot  indulge,  even  in  private,  in  his  favorite  game 
of  "  tan."  3  And  in  some  of  the  States,  betting  on  the 
elections,  indulged  in  any  where,  is  made  a  criminal  offense;  * 
while,  in  Illinois  and  Missouri,  gambling  in  stocks  or  pro- 
duce brings  one  within  the  condemnation  of  the  criminal 
law.5 

But,  ordinarily,  the  punishment  of  gambling  is  confined 
to  cases  which  take  place  in  some  public  place,  or  in 
a  regular  gambling  saloon.  Most  of  the  statutes  make 
the  fact  of  gambling  in  a  public  place  the  only  punish- 
able offense,  and  this  fact  is  required  to  be  established 
against  each  defendant.6  But  in  two  of  the  States,  at 

1  Skinner  v.  State,  87  Ala.  105;  Dailey  v.  State,  27  Tex.  App.  569. 

2  State  v.  Brast,  31  W.  Va.  380;  Comer  v.  State,  26  Tex.  App.  509. 
But  see,  contra,  Foster  v.  State,  84  Ala.  451.    And  in  Borders  v.  State, 
24  Tex.  App.  333,  it  was  held  that  the  fact,  that  parties  had  resorted  to  a 
private  residence  for  the  purpose  of  gambling  on  previous  occasions, 
did  not  make  it  a  case  of  gambling  in  public  places. 

3  People  v.  Sam  Lung,  70  Cal.  615. 

4  State  v.  Griggs,  34  W.  Va.  78;  Covington  v.  State,  28  Tex.  App.  225; 
Com.  v.  Wells,  110  Pa.  St.  463. 

6  Wolsey  v.  Neely,  62  111.  App.  141 ;  State  v.  Gritzner,  134  Mo.  512. 

6  Nichols  v.  State,  111  Ala.  58;  Day  o.  State,  27  Tex.  App.  148; 
Dailey  v.  State,  27  Tex.  App.  569;  State  v.  Light,  17  Oreg.  358;  State  v. 
McDaniel,  20  Oreg.  523;  Franklin  v.  State,  91  Ala.  23;  Farmer  v.  State 
(Ga.),  16  S.  E.  937. 

§    60 


SUMPTUARY    LAWS.  187 

least,  it  is  a  criminal  offense  to  visit  a  public  gambling 
house.1 

§  61.  Sumptuary  laws. — Of  the  same  general  char- 
acter, as  laws  for  the  correction  of  vices,  are  the  sumptuary 
laws  of  a  past  civilization.  Extravagance  in  expenditures, 
the  control  of  which  was  the  professed  design  of  these  laws, 
was  proclaimed  to  be  a  great  evil,  threatening  the  very  found- 
ations of  the  State  ;  but  it  is  worthy  of  notice  that  in  those 
countries  and  in  the  age  in  which  they  were  more  common, 
despotism  was  rank  ;  and  the  common  people  were  subjected 
to  the  control  of  these  sumptuary  laws,  in  order  that  by  re- 
ducing their  consumption  they  may  increase  the  sum  of  en- 
joyment of  the  privileged  classes.  The  diminution  of  their 
means  of  luxuriant  living  was  really  the  danger  against  which 
the  sumptuary  laws  were  directed.  In  proportion  to  the 
growth  of  popular  yearning  for  personal  liberty,  these  laws 
have  become  more  and  more  unbearable,  until  now  it  is  the 
universal  American  sentiment,  that  these  laws,  at  least  in 
their  grosser  forms,  and  hence  on  principle,  are  violations 
of  the  inalienable  right  to  "  liberty  and  the  pursuit  of  hap- 
piness," and  involve  a  deprivation  of  liberty  and  prop- 
erty —  through  a  limitation  upon  the  means  and  ways  of 
enjoyment  —  without  due  process  of  law.  Judge  Cooley 
says  :  "  The  ideas  which  suggested  such  laws  are  now  ex- 
ploded utterly,  and  no  one  would  seriously  attempt  to  just- 
ify them  in  the  present  age.  The  right  of  every  man  to  do 
what  he  will  with  his  own,  not  interfering  with  the  recip- 
rocal right  of  others,  is  accepted  among  the  fundamentals 
of  our  law."  2  It  is  true  that  a  public  and  general  extrava- 
gance in  the  ways  of  living  would  lead  to  national  decay. 
Nations  have  often  fallen  into  decay  from  the  corruption 
caused  by  the  individual  indulgence  of  luxurious  tastes. 

1  Commonwealth  v.  Warren,   161   Mass.  281;  Ex  parte  Boswell,  86 
Cal.  232. 

2  Cooley  Const.  Lira.  *385. 

§  61 


188      STATE   REGULATION  OF   MORALITY  AND    RELIGION. 

But  this  damage  to  others  is  very  remote,  if  it  can  be 
properly  called  consequential,  and  in  any  event  of  its  be- 
coming a  widespread  evil,  the  nation  would  be  so  honey- 
combed with  corruption  that  the  means  of  redemption,  or 
regeneration,  except  from  without,  would  not  be  at  hand. 
The  enforcement  of  the  laws  could  not  be  secured.  The 
inability  to  secure  a  reasonable  enforcement  of  a  law  is 
always  a  strong  indication  of  its  unconstitutionality  in  a 
free  State. 

Public  sentiment  in  the  United  States  is  too  strong  in  its 
opposition  to  all  laws  which  exert  an  irksome  restraint  upon 
individual  liberty,  in  order  that  sumptuary  laws  in  their 
grosser  forms  may  be  at  all  possible.  But  as  far  as  the 
liquor  prohibition  laws  have  for  their  object  the  prevention 
of  the  consumption  of  intoxicating  liquors,  they  are  sumpt- 
ary  laws,  and  are  constitutionally  objectionable  on  that 
ground,  if  the  measures  are  not  confined  to  the  prohibition 
of  the  sale  of  liquors.  This  is  the  usual  limitation  upon 
the  scope  of  the  prohibition  laws.  But  it  is  said  that  in 
the  States  of  Wisconsin  and  Nevada  laws  have  been  enacted 
by  the  Legislature,  prohibiting  the  act  of  "  treating  "  to 
intoxicating  drinks,  making  it  a  misdemeanor,  and  punish- 
able by  fine  or  imprisonment.  There  is  probably  very  little 
doubt  that  a  large  proportion  of  the  intemperance  among 
the  youth  of  this  country  may  be  traced  to  this  peculiarly 
American  custom  or  habit  or  "  treating."  But  inasmuch 
as  the  persons,  who  are  directly  injured  —  and  this  is  the 
only  consequential  injury  which  can  be  made  the  subject  of 
legislation  —  are  all  willing  participants,  except  in  the 
very  extreme  cases  of  beastly  intoxication,  when  one  or 
more  of  the  parties  "treated"  cannot  be  considered  as 
rational  beings  —  volenti  nonfil  injuria  —  these  regulations 
are  open  to  the  constitutional  objection  of  a  deprivation  or 
restraint  of  liberty,  in  a  case  in  which  no  right  has  been  in- 
vaded. The  manifest  inability  to  secure,  even  in  the  slight- 
est degree,  an  enforcement  of  these  curious  experiments 
§  61 


CHURCH    AND    STATE HISTORICAL   SYNOPSIS.  189 

in  legislation  has  been  their  most  effective  antidote.  But 
while,  as  a  general  proposition,  we  may  freely  use  what- 
ever food  or  clothing  taste  or  caprice  may  suggest,  without 
the  exercise  of  any  governmental  restraint,  there  are  some 
exceptions  to  the  rule,  which  will  probably  be  admitted 
without  question.  Certainly  no  one  would  seriously  doubt 
the  constitutionality  of  the  laws,  to  be  found  on  the  statute 
book  of  every  State,  which  provide  for  the  punishment  of 
an  indecent  exposure  of  the  person  in  the  public  thorough- 
fares. Every  one  can  be  required  to  appear  in  public  in 
decent  attire.  It  is  not  definitely  settled  what  is  meant  by 
indecent  attire,  but  probably  the  courts  would  experience 
no  difficulty  in  reaching  the  conclusion  that  any  attire  is 
indecent,  which  left  exposed  parts  of  the  human  body  which 
according  to  the  common  custom  of  the  country  are  invari- 
ably covered.  It  is  questionable  that  the  courts  can  go 
farther  in  the  requirement  of  decent  attire ;  as,  for  example, 
to  prohibit  appearance  in  the  streets  in  what  are  usually 
worn  as  undergarments,  provided  that  the  body  is  properly 
covered  to  prevent  exposure. 

Another  phase  of  police  power,  in  this  connection,  is  the 
prohibition  of  the  appearance  in  public  of  men  in  women's 
garb,  and  vice  versa.  The  use  of  such  dress  could  serve 
no  useful  purpose,  and  tends  to  public  immorality  and  the 
perpetration  of  frauds.  Its  prohibition  is,  therefore,  proba- 
bly constitutional.  But  it  does  not  follow  that  a  law,  which 
prohibited  the  use  by  men  of  a  specific  article  of  women's 
dress,  or  to  women  the  use  of  a  particular  piece  of  men's 
clothing,  would  be  constitutional.  The  prohibition  must  be 
confined  to  those  cases,  in  which  immorality  or  the  practice 
of  deception  is  facilitated,  viz.,  where  one  sex  appears 
altogether  in  the  usual  attire  of  the  other  sex. 

§  62.    Church     and     State  —  Historical     synopsis.  — 

Religious  liberty,  in  all  its  completeness,  is  a  plant  of 
American  growth.  In  no  other  country,  and  in  no  pre- 

§   62 


190       STATE   REGULATION    OF   MORALITY   AND    RELIGION. 

ceding  age,  was  there  anything  more  than  religious  tolera- 
tion ;  and  even  toleration  was  not  a  common  experience. 
Everywhere,  the  State  was  made  the  instrument  for  the 
propagation  of  the  doctrines  of  some  one  religious  sect,  and 
all  others  were  either  directly  prohibited,  or  so  greatly  dis- 
criminated against  in  the  bestowal  of  State  patronage,  as  to 
amount,  in  effect,  to  an  actual  prohibition.  On  the  other 
hand,  the  State  would  secure  the  support  of  the  church  in 
the  enforcement  of  its  mandates.  Before  the  American 
era,  the  gradual  development  of  the  human  soul,  under  the 
workings  of  the  forces  of  civilization,  had  long  since  done 
away  with  physical  torture.  Heretics  were  not  burned  at 
the  stake,  or  put  to  the  rack  ;  but  the  same  cruel  intolerance 
exacted  the  creation  of  social  and  political  distinctions, 
which  were  equally  effective  in  oppressing  those  who  dif- 
fered in  their  religious  faith  with  the  majority.  Protestant 
England  and  Germany  oppressed  the  Catholics,  and  Catho- 
lic France  and  Italy  oppressed  the  Protestants,  while  the 
infidel  received  mercy  and  toleration  at  the  hands  of  neither. 
Most  of  the  immigrants  to  the  American  colonies  were  refu- 
gees from  religious  oppression,  driven  to  the  wilds  of  Am- 
erica, in  order  to  worship  the  God  of  the  Universe  according 
to  the  dictates  of  their  conscience.  The  Puritans  of  New 
England,  the  Quakers  of  Pennsylvania,  the  English  Catholics 
of  Maryland  and  the  Huguenots  of  the  Carolinas,  sought  on 
this  continent  that  religious  liberty  which  was  not  to  be  found 
in  Europe.  I  should  not  say  "  religious  liberty,"  for  that  is 
not  what  they  sought.  They  desired  only  to  be  freed  from 
the  restraint  of  an  intolerant  and  imposing  majority.  They 
desired  only  to  settle  in  a  country  where  the  adherents  of 
their  peculiar  creed  could  control  the  affairs  of  State.  Not- 
withstanding their  sad  experience  in  the  old  world,  when 
they  settled  in  America,  they  became  as  intolerant  of  dis- 
senters from  the  faith  of  the  majority,  as  their  enemies  had 
been  towards  them.  Church  and  State  were  not  yet  sepa- 
rate. Each  colony  was  dominated  by  some  sect,  and  the 
§  62 


CHURCH   AND   STATE  —  HISTORICAL   SYNOPSIS.  191 

others  fared  badly.  The  performance  of  religious  duties 
was  enforced  by  the  institution  of  statutory  penalties. 
The  clergyman,  particularly  of  New  England,  was  not  only 
the  shepherd  of  the  soul,  but  he  was  likewise,  in  some 
sense,  a  magistrate.  "  The  heedless  one  who  absented 
himself  from  the  preaching  on  a  Sabbath  was  hunted  up 
by  the  tithing  man,  was  admonished  severely,  and,  if  he 
still  persisted  in  his  evil  ways,  was  fined,  exposed  in  the 
stocks  or  imprisoned  in  the  cage.  To  sit  patiently  on  the 
rough  board  seats,  while  the  preacher  turned  the  hour-glass 
for  the  third  time,  and  with  his  voice  husky  from  shouting, 
and  the  sweat  pouring  in  streams  down  his  face,  went  on  for 
an  hour  or  more,  was  a  delectable  privilege.  In  such  a 
community  the  authority  of  the  reverend  man  was  almost 
supreme.  To  speak  disrespectfully  concerning  him,  to  jeer 
at  his  sermons,  or  to  laugh  at  his  odd  ways,  was  sure  to 
bring  down  on  the  offender  a  heavy  fine."  l  The  religious 
liberty  of  the  colonial  period  meant  nothing  more  than 
freedom  from  religious  restraint  for  the  majority,  while  the 
minority  suffered  as  much  persecution  as  the  immigrants 
had  themselves  suffered  in  Europe,  a  striking  illustration  of 
the  accuracy  of  the  doctrine  that  there  are  no  worse 
oppressors  than  the  oppressed;  when  they  have  in  turn 
become  the  ruling  class.  It  is  no  exaggerated  view  to  take 
of  the  probabilities,  that  the  grand  establishment  of  relig- 
ious liberty  of  to-day  would  not  have  been  attained,  at 
least  in  the  present  age,  if  the  rapid  increase  in  the  num- 
ber of  religious  sects,  each  one  of  which  was  predominant 
in  one  or  more  of  the  colonies,  had  not  militated  against 
the  successful  union  of  the  colonies  into  one  common  coun- 
try. "  In  some  of  the  States,  Episcopalians  constituted  the" 
predominant  sect;  in  others,  Presbyterians  ;  in  others, Con- 
gregationalists;  in  others,  Quakers,  and  in  others,  again, 
there  was  a  close  numerical  rivalry  among  contending  sects. 

1  McMaster's  Hist,  of  People  of  U.  S.,  vol.  L,  p.  31. 

§    62 


192       STATE    REGULATION   OF   MORALITY   AND    RELIGION. 

It  was  impossible  that  there  should  not  arise  perpetual 
strife  and  perpetual  jealousy  on  the  subject  of  ecclesiastical 
ascendency,  if  the  national  government  were  left  free  to 
create  a  religious  establishment.  The  only  security  was  in 
extirpating  the  power."  l  Congress  was  therefore  denied 
by  the  first  amendment  to  the  Constitution  of  the  United 
States  the  power  to  make  any  law  respecting  an  establish- 
ment of  religion  or  prohibiting  the  free  exercise  thereof. 
"  Thus,  the  whole  power  over  the  subject  of  religion  is  left 
exclusively  to  the  State  governments,  to  be  acted  upon 
according  to  their  own  sense  of  justice  and  the  State  con- 
stitutions ;  and  the  Catholic  and  Protestant,  the  Calvinist 
and  the  Armenian,  the  Jew  and  the  infidel,  may  sit  down  at 
the  common  table  of  the  national  councils,  without  any 
inquisition  into  their  faith  or  mode  of  worship."2 

Proceeding  from  this  limitation  upon  the  power  of  the 
national  government  to  regulate  religion,  there  was  ulti- 
mately incorporated  into  the  constitutions  of  almost  all  of 
the  States  a  prohibition  of  all  State  interference  in  matters 
of  religion  ;  thus  laying  the  foundation  for  that  development 
of  a  complete  and  universal  religious  liberty,  a  liberty  en- 
joyed alike  by  all,  whatever  may  be  their  faith  or  creed. 
Thus  and  then,  for  the  first  time  in  the  history  of  the  world, 
was  there  a  complete  divorce  of  church  and  State.  But 
even  with  the  enactment  of  the  constitutional  provisions, 
religious  liberty  was  not  assured  to  all.  Legal  discrimina- 
tions, on  account  of  religious  opinions,  exist  in  some  of  the 
States  to  the  present  day,  and  public  opinion  in  most  Amer- 
ican communities  is  still  in  a  high  degree  intolerant.3  The 
complete  abrogation  of  all  State  interference  in  matters  of 
religion  is  of  slow  growth,  and  can  only  be  attained  with 
the  growth  of  public  opinion. 

9 

1  Story  on  the  Constitution,  §  1879. 

2  Story  on  Constitution,  §  1879. 
8  See  post,  §  67. 

§    62 


POLICE   REGULATION   OF   RELIGION.  193 

§  63.  Police  regulation  of  religion  —  Constitutional 
restrictions. —  If  there  were  no  provisions  in  the  American 
constitutions  especially  applicable  to  the  matter  of  police 
regulation  of  religion,  the  considerations  which  would  deny 
to  the  State  the  control  and  prevention  of  vice  would  also 
constitute  insuperable  objections  to  State  interference  in 
matters  of  religion.  But  the  rivalry  and  contention  of  the 
religious  sects  not  only  demanded  constitutional  prohibition 
of  the  interference  of  the  national  government,  but  gave 
rise  to  the  incorporation  of  like  prohibitions  in  the  various 
State  constitutions.  The  exact  phraseology  varies  with 
each  constitution,  but  the  practical  effect  is  believed  in  the 
main  to  be  the  same  in  all  of  them.  These  provisions  not 
only  prohibit  all  church  establishments,  but  also  guarantee 
to  each  individual  the  right  to  worship  God  in  his  own  way, 
and  to  give  free  expression  to  his  religious  views.  The 
prohibition  of  a  religious  establishment  not  only  prevents 
the  establishment  of  a  distinctively  State  church,  but  like- 
wise prohibits  all  preferential  treatment  of  the  sects  in  the 
bestowal  of  State  patronage  or  aid.  A  law  is  unconstitu- 
tional which  gives  to  one  or  more  religious  sects  a  privi- 
lege that  is  not  enjoyed  equally  by  all.1  "  Whatever 
establishes  a  distinction  against  one  class  or  sect  is,  to  the 
extent  to  which  the  distinction  operates  unfavorably,  a 
persecution  ;  and  if  based  on  religious  grounds,  a  religious 
persecution.  The  extent  of  the  discrimination  is  not  ma- 
terial to  the  principle,  it  is  enough  that  it  creates  an  in- 
equality of  right  or  privilege."  2 

But  while  religious  establishments  and  unequal  privileges 
are  prohibited,  and  the  State  in  its  dealings  with  the  individ- 
ual is  to  know  no  orthodoxy  or  heterodoxy,  no  Christianity 
or  infidelity,  no  Judaism  or  Mohammedanism,  the  law  can- 
not but  recognize  the  fact  that  Christianity  is  in  the  main  the 

1  Shreveport  v.  Levy,  27  La.  Ann.  671. 

2  Cooley  Const.  Lira.  *469. 

13  §    63 


194      STATE    REGULATION   OP   MORALITY   AND    RELIGION. 

religion  of  this  country.  While  equality,  in  respect  to  the 
bestowal  of  privileges,  is  to  be  strictly  observed,  the  recogni- 
tion of  the  prevailing  religion,  in  order  to  foster  and  encour- 
age the  habit  of  worship  as  a  State  policy,  is  permissible, 
provided  there  is  no  unnecessary  discrimination  in  favor  of 
any  particular  sect.  It  is  said  that  only  unnecessary  dis- 
crimination is  prohibited.  By  that  is  meant  that,  in  the  en- 
couragement of  religious  worship,  there  is  in  some  cases  an 
unavoidable  recognition  of  the  overwhelming  prevalence  of 
the  Christian  religion  in  this  country.  The  masses  of  this 
country,  if  they  profess  any  religious  creed  at  all,  are 
Christians.  Thus,  for  example,  it  has  long  been  the  custom 
to  appoint  chaplains  to  the  army  and  navy  of  the  United 
States,  and  the  sessions  of  Congress  and  of  the  State  legisla- 
tures are  usually  opened  with  religious  exercises.  These 
chaplains  are  naturally  Christian  clergymen.  If  they  were 
the  teachers  of  any  other  religion,  their  public  ministrations 
would  fail  in  the  object  of  their  appointment,  viz. :  the  en- 
couragement of  religious  worship,  because  such  exercises 
would  offend  the  religious  sensibilities  and  arouse  the  oppo- 
sition of  the  masses,  instead  of  exciting  in  them  a  greater 
desire  for  spiritual  enlightenment.  But  these  regulations 
can  go  no  further  than  the  institution  and  maintenance  of 
devotional  exercises.  If  attendance  upon  these  exercises  is 
made  compulsory  upon  the  army  and  navy,  and  upon  the 
members  of  the  legislative  bodies,  there  would  be  a  clear 
violation  of  the  religious  liberty  of  the  person  who  was 
compelled  to  attend  against  his  will.  The  Jew  and  the 
infidel  cannot  be  forced  to  attend  them.1 

This  question  has  of  late  years  been  much  discussed  in  its 
bearings  upon  the  conduct  of  religious  exercises  in  the  pub- 
lic schools  of  this  country.  It  has  been  held  that  the 
school  authorities  may  compel  the  pupils  to  read  the  Bible 
in  the  schools,  even  against  the  objection  and  protest  of  the 

1  Cooley  Const.  Lira.  *471. 
§   63 


POLICE   REGULATION   OF   RELIGION.  195 

parents.1  But  it  would  appear  that  this  view  is  erroneous. 
It  is  true  that  the  regulation  does  not  constitute  such  a  gross 
violation  of  the  religious  liberty  of  the  child,  as  it  would,  if 
attendance  upon  the  school  was  compulsory.  It  is  true  that 
the  Hebrew  or  infidel  need  not  attend  the  public  schools, 
if  he  objects  to  the  religious  exercises  conducted  there.  But 
such  a  regulation  would  amount  to  the  bestowal  of  unequal 
privileges,  which  is  as  much  prohibited  by  our  constitutional 
law  as  direct  religious  proscription.  In  accordance  with  the 
permissible  recognition  of  Christianity  as  the  prevailing 
religion  of  this  country,  it  may  be  permitted  of  the  school 
authorities  to  provide  for  devotional  exercises  according  to 
the  Christian  faith,  but  neither  teacher  nor  pupil  can  lawfully 
be  compelled  to  attend.2  All  education  must  be  built  upon 

1  See  Donahue  v.  Richards,  38  Me.  376;  Spiller  v.  Woburn,  12  Allen, 
127. 

2  Speller  v.  Woburn,  12  Allen,  127.    In  Iowa  by  statute  it  was  pro- 
vided that  the  Bible  shall  not  be  excluded  from  the  public  schools  but 
that  no  pupil  shall  be  required  to  read  it  contrary  to  the  wishes  of  his 
parent  of  guardian.    In  declaring  the  statute  to  be  constitutional,  the 
court  says:  "The  plaintiff's  position  is  that  by  the  use  of  the  school- 
house  as  a  place  for  reading  the  Bible,  repeating  the  Lord's  prayer  and 
singing  religious  songs,  it  is  made  a  place  of  worship;  and  so  his  chil- 
dren are  compelled  to  attend  a  place  of  worship,  and  he,  as  a  taxpayer, 
is  compelled  to  pay  taxes  for  building  and  repairing  a  place  of  worship. 
We  can  conceive  that  exercises  like  those  described  might  be  adopted 
with  other  views  than  those  of  worship,  and  possibly  they  are  in  the 
case  at  bar;  but  it  is  hardly  to  be  presumed  that  this  is  wholly  so.    For 
the  purposes  of  the  opinion  it  may  be  conceded  that  the  teachers  do 
not  intend  wholly  to  exclude  the  idea  of  worship.     It  would  follow  that 
the  school- house  is,  in  some  sense,  for  the  time  being,  made  a  place  of 
worship.     But  it  seems  to  us  that  if  we  should  hold  that  it  is  made  a 
place  of  worship  within  the  meaning  of  the  constitution,  we  should  pc  j 
a  very  strained  construction  upon  it. 

"  The  object  of  the  provision,  we  think,  is  not  to  prevent  the  casual  use 
of  a  public  building  as  a  place  for  offering  prayer,  or  doing  other  acts  of 
religious  worship,  but  to  prevent  the  enactment  of  a  law,  whereby  any 
person  can  be  compelled  to  pay  taxes  for  building  or  repairing  any  place, 
designed  to  be  used  distinctively  as  a  place  of  worship.  The  object,  we 
think,  was  to  prevent  an  improper  burden.  It  is,  perhaps,  not  to  be 
denied  that  the  principle,  carried  out  to  its  extreme  logical  results, 

$    03 


196       STATE    KEGULATION    OF   MORALITY    AND    RELIGION. 

the  corner-stone  of  morality,  in  order  that  any  good  may 
come  out  of  it  to  the  individual  or  to  society;  and  an  educa- 
tional course,  which  did  not  incorporate  the  teaching  of 
moral  principles,  would  at  least  be  profitless,  if  not  abso- 
lutely dangerous.  The  development  of  the  mind  without 
the  elevation  of  the  soul,  only  sharpens  the  individual's  wits, 
and  makes  him  more  dangerous  to  the  commonwealth.  The 
teaching  of  morality  is  therefore  not  in  any  sense  objection- 
able ;  on  the  contrary,  it  should  be  made  the  chief  aim  of 
the  public  school  system.  But  religion  should  be  carefully 
distinguished  from  morality.  The  Jew,  the  Christian,  the 
Chinese,  the  Mohammedans,  the  infidels  and  atheists,  all 
may  alike  be  taught  the  common  principles  of  morality, 
without  violating  their  religious  liberty.  The  law  exacts 
an  obedience  to  the  more  vital  and  fundamental  principles 
of  morality,  and  the  State  can  as  well  provide  for  morr.l  in- 


might  be  sufficient  to  sustain  the  appellant's  position,  yet  we  cannot 
think  that  the  people  of  Iowa,  in  adopting  the  constitution,  had  such  an 
extreme  view  in  mind.  The  burden  of  taxation  by  reason  of  the  casual 
use  of  a  public  building  for  worship,  or  even  such  stated  use  as  that 
shown  in  the  case  at  bar,  is  not  appreciably  greater.  We  do  not  think 
indeed  that  the  plaintiff's  real  objection  grows  out  of  the  matter  of  real 
taxation.  We  infer  from  his  argument  that  his  real  objection  is  that  the 
religious  exercises  are  made  a  part  of  the  educational  system  into  which 
his  children  must  be  diawn,  or  made  to  appear  singular,  and  perhaps 
be  subjected  to  some  inconvenience.  But  so  long  as  the  plaintiff's  chil- 
dren are  not  required  to  be  in  attendance  at  the  exercises,  we  cannot 
regard  the  objection  as  one  of  great  weight.  Besides,  if  we  regard 
it  as  of  greater  weight  than  we  do,  we  should  have  to  say  that  we  do  not 
find  anything  in  the  constitution  or  law  upon  which  the  plaintiff  can 
properly  ground  his  application  for  relief."  Moore  v.  Moore,  64  Iowa, 
367  (52  Am.  Rep.  444).  See,  in  support  of  the  text,  State  v.  District 
Board  of  School  Dist.  No.  8,  76  Wis.  177;  Barrett  ».  City  of  Winnepeg, 
19  Canada  S.  C.  374;  Stevenson  v.  Hanyen,  7  Pa.  Dist.  585;  9  Kulp.  256. 
In  Michigan  it  has  been  held  very  recently,  that  provision  for  the  read- 
ing of  the  Bible  in  the  schools  at  the  close  of  the  secular  exercises  does 
not  constitute  a  violation  of  the  religious  liberty  of  the  pupils,  where  no 
pupils  are  to  attend  the  religious  exercises  against  the  expressed  wishes 
of  the  parents.  Pfeifer  v.  Bd.  of  Education  of  Detroit  (Mich.  '98),  77 
N.  W.  250. 

§   63 


STATE  CONTROL  OF  CHURCHES  AND  CONGREGATIONS.       197 

struction  in  its  public  schools.  It  ia  its  duty  to  do  so.  But 
moral  instruction  does  not  necessitate  the  use  of  the  Bible, 
or  any  other  recognition  of  Christianity,  and  such  recogni- 
tion is  unconstitutional,  when  forced  upon  an  unwilling 
pupil. 

§  64.   State  control  of  churches  and  congregations. — 

In  the  English  law  of  corporations,  one  of  the  classifications 
is  into  ecclesiastical  and  lay.  The  religious  incorporations 
were  called  ecclesiastical,  and  because  of  the  legal  recogni- 
tion and  establishment  of  church  and  religion,  they  are 
possessed  of  peculiar  characteristics,  which  called  for  this 
special  classification.  But  in  this  country  there  is  no  need 
for  it.  In  conformity  with  the  general  encouragement  of 
religious  worship,  voluntary  religious  societies  are  at  their 
request  incorporated  under  the  general  laws,  in  order  that 
they  may  hold  and  transmit  property,  and  do  other  neces- 
sary acts  as  a  corporate  body,  which  without  incorporation 
would  be  the  joint  acts  of  the  individual  members,  with  the 
general  liability  of  partners.  All  religious  societies  are 
nlike  entitled  to  incorporation,  and  whatever  privileges  are 
granted  to  one  society  or  sect,  must  be  granted  to  all,  in 
order  not  to  offend  the  constitutional  prohibition. 

Upon  the  incorporation  of  a  religious  society,  two  differ- 
ent bodies,  co-existing  and  composed  of  the  same  members, 
are  to  be  recognized.  The  religious  organization,  together 
with  the  spiritual  affairs  of  the  society,  has  received  no 
legal  recognition  and  has,  in  fact,  no  legal  status,  except  as 
it  might  affect  the  temporal  affairs  and  civil  rights  of  the 
members  of  the  corporation,  wherewith  it  is  so  intimately 
bound  up  that  it  is  difficult  at  times  to  trace  the  line  of  de- 
marcation. There  has  been  no  incorporation  of  the  spiritual 
organization.  Its  members  have  only  become  incorporators 
of  the  religious  corporation.  While  the  corporation  and  the 
spiritual  organization  are  usually  composed  of  the  same  mem- 
bers, it  is  not  at  all  impossible  for  what  appears,  to  clericals 

§  64 


198      STATE    REGULATION   OF    MORALITY    AND    RELIGION. 

and  laymen  alike,  as  a  remarkable  anomaly  to  happen,  viz. : 
that  some  of  the  members  of  the  corporation  are  not  mem- 
bers of  the  spiritual  corporation,  and  some  members  of  the 
latter  do  not  belong  to  the  temporal  society.  Of  course, 
this  is  only  possible  when  the  organic  law  of  the  corporation 
does  not  require  membership  in  the  spiritual  organiza- 
tion, as  a  condition  of  membership  in  the  legal  incorpora- 
tion. The  law  cannot  undertake  to  regulate  the  religious 
affairs  of  the  society,  or  overrule  the  decisions  and  actions 
of  the  properly  constituted  authorities  of  the  church  in 
respect  to  such  religious  affairs.1  The  creed,  articles  of 
faith,  church  discipline,  and  ecclesiastical  relations  generally 
are  beyond  State  regulation  or  supervision.  "  Over  the 
church,  as  such,  the  legal  or  temporal  tribunals  of  the  State 
do  not  profess  to  have  any  jurisdiction  whatever,  except  so 
far  as  is  necessary  to  protect  the  civil  rights  of  others,  and 
to  preserve  the  public  peace.  All  questions  relating  to  the 
faith  and  practice  of  the  church  and  its  members  belong  to 
the  church  judicatories  to  which  they  have  voluntarily  sub- 
jected themselves."  2  But  whenever  the  civil  and  property 

1  Baxter  v.  McDonnell,  155  N.  Y.  83;  First  Presbyterian  Church  of 
Perry  v.  Myers,  5  Okl.  809. 

2  Walworth,  Chancellor,  in  Baptist  Church  v.  Wetherell,  3  Paige,  296 
(24  Am.  Dec.  223).    "  In  this  country  the  full  and  free  right  to  entertain 
any  religious  belief,  to  practice  any  religious  principle,  and  to  teach  any 
religious  doctrine  which  does  not  violate  the  laws  of  morality  and  prop- 
erty, and  which  does  not  infringe  personal  rights,  is  conceded  to  all.    The 
law  knows  no  heresy,  and  is  committed  to  the  support  of  no  dogma,  the 
establishment  of  no  sect.    The  right  to  organize  voluntary  religious  asso- 
ciations, to  assist  in  the  expression  and  dissemination  of  any  religious 
doctrine  and  to  create  tribunals  for  the  decision  of  controverted  ques- 
tions of  faith  within  the  association  and  for  the  ecclesiastical  govern- 
ment of  all  the  individual  members,  congregations  and  officers  within  the 
general  associations  is  unquestioned.    All  who  unite  themselves  to  such 
a  body  do  so  with  an  implied  consent  to  this  government,  and  are  bound 
to  submit  to  it.    But  it  would  be  a  vain  consent  and  would  lead  to  the 
total  subversion  of  such  religious  bodies,  if  any  one  aggrieved  by  one  of 
their  decisions  could  appeal  to  the  secular  courts  and  have  them  reversed. 
It  is  the  essence  of  these  religious  unions,  and  of  their  right  to  establish 

§   64 


STATE  CONTROL  OF  CHURCHES  AND  CONGREGATIONS.       199 

rights  of  the  individual  are  invaded,  the  State  is  justified 
and  expected  to  exercise  the  same  control  and  supervision 
as  it  would  in  the  case  of  any  other  incorporation.1  The 
legal  corporations  may  be  established  simply  upon  the  basis 
of  a  community  of  property,  without  introducing  any  relig- 
ious qualification  as  a  member,2  and  in  that  case  there  is 
no  opportunity  whatsoever  for  State  interference  in  the 
religious  affairs  of  the  organization.  But  this  is  not  usually 
the  case.  Membership  in  the  corporation  assumes  ordi- 
narily a  more  or  less  religious  aspect,  and  depends  upon 
the  performance  of  certain  religious  conditions.  The  civil 
rights  of  such  a  member  may,  therefore  be  materially 
affected  by  the  decisions  of  the  ecclesiastical  authorities,  and 
to  that  extent  and  for  the  protection  of  such  civil  rights  are 
these  decisions  on  religious  matters  subject  to  review.  The 
religious  status  cannot  be  determined  in  any  event  by  a  civil 
court,  except  as  it  bears  upon  and  interferes  with  the  tem- 
poral or  civil  rights  of  the  individual.  And  even  then  the 
courts  are  not  permitted  to  review  and  determine  the  essen- 
tial accuracy  of  the  decision.  The  court  must  confine  its 
investigation  to  ascertaining,  whether  the  proper  religious 
authorities  had  had  cognizance  of  the  case,  and  had  complied 
with  their  organic  law  in  the  procedure,  and  how  far  the 

tribunals  for  the  decision  of  questions  arising  among  themselves,  that 
those  decisions  should  be  binding  in  all  cases  of  ecclesiastical  cognizance, 
subject  only  to  such  appeals  as  the  organism  itself  provides  for."  Wat- 
son ».  Jones,  13  Wall.  679.  See,  also,  Sohier  v.  Trinity  Church,  109  Mass. 
1;  Lawyer  v.  Cipperly,  7  Paige,  281;  Robertson  v.  Bullions,  11  N.  Y.  243; 
Heliport  v.  Tooker,  21  N.  Y.  267  (29  Barb.  256);  O'Hara  v.  Stack,  90  Pa. 
St.  477;  Keyser  v.  Stansifer,  6  Ohio,  363;  Shannon  v.  Frost,  3  B.  Mon. 
253;  Lucas  v.  Case,  9  Bush,  297;  Ferraria  ».  Vasconcellos,  31  111.  25; 
Calkins  v.  Chaney,  92  111.  463;  German  Congregation  v.  Pressler,  17  La. 
Ann.  127;  Wheelock  v.  First  Presbyterian  Church,  119  Cal.  477;  In  re 
Election  of  Trustees  of  Bethany  Baptist  Church,  60  N.  J.  L.  88. 

1  Watson  v.  Jones,  13  Wall.  679;  Smith  v.  Nelson,  18  Vt.  611;  Hale 
v.  Everett,  53  N.  H.  9;  Ferraria  v.  Vasconcellos,  31  111.  25;  Watson  v. 
Avery,  2  Bush,  332;  Happy  v.  Morton,  93  111.  398. 

2  Waite  v.  Merrill,  4  Me.  102  (16  Am.  Dec.  238);  Scribner  v.  Rapp,  5 
Watts.  311  (30  Am.  Dec.  327). 

§    64 


200      STATE    REGULATION   OF   MORALITY   AND    RELIGION. 

decision  affects  the  civil  rights  under  the  by-laws  and  char- 
ter of  the  corporation.1 

§  65.  Religious  criticism  and  blasphemy  distinguish- 
ed.—  The  recognition  of  Christianity  by  the  State  is  not, 
and  need  not  be,  confined  to  the  provision  for  Christian 
devotional  exercises  in  the  various  governmental  depart- 
ments and  State  institutions,  as  has  been  explained  and 
claimed  in  a  preceding  section.2  The  fostering  and  en- 
couragement of  a  worshipful  attitude  of  mind,  the  develop- 
ment and  gratification  of  the  religious  instinct,  should  be  of 
great  concern  to  the  State.  While  morality  is  distinguish- 
able from  religion,  the  most  important  principles  of  morality 

1  "  When  a  civil  right  depends  upon  an  ecclesiastical  matter,  it  is  the 
civil  court  and  not  the  ecclesiastical  which  is  to  decide.      But  the  civil 
tribunal  tries  the  civil  right  and  no  more,  taking  the  ecclesiastical  de- 
cisions out  of  which  the  civil  right  arises  as  it  finds  them."    Harmon  v. 
Dreher,  2  Speer's  Eq.  87. 

"  The  entire  separation  of  church  and  State  is  not  the  least  of  the  evi- 
dences of  the  wisdom  and  forethought  of  those  who  made  our  nation's 
constitution.  It  was  more  than  a  happy  thought,  it  was  an  inspiration. 
But  although  the  State  has  renounced  authority  to  control  the  internal 
management  of  any  church,  and  refuses  to  prescribe  any  form  of  church 
government,  it  is  nevertheless  true  that  the  law  recognizes  the  existence 
of  churches,  and  protects  and  assures  their  right  to  exist,  and  to  possess 
and  enjoy  their  powers  and  privileges.  Of  course,  wherever  rights  of 
property  are  invalid,  the  law  must  interpose  equally  in  those  instances 
where  the  dispute  is  as  to  church  property  as  in  those  where  it  is  not, 
and  it  also  takes  note  of,  but  does  not  itself  enforce,  the  discipline  of  the 
church,  and  the  maintenance  of  church  order  and  internal  regulation." 
State  v.  Hebrew  Congregation,  30  La.  Ann.  205  (33  Am.  Rep.  217).  See, 
also,  Watson  v.  Jones,  13  Wall.  679;  Grosvenor  v.  United  Society,  118 
Mass.  78;  DiefEendorf  v.  Ref.  Col.  Church,  20  Johns.  12;  Baptist  Church 
v.  Wetherell,  3  Paige,  301  (24  Am.  Dec.  223)  ;  People  v.  German  Church, 
53  N.  Y.  103;  Hendrickson  v.  Decon,  1  N.  Y.  Eq.  577;  Den  v.  Bolton,  12 
N.  J.  206;  McGinnisfl.  Watson,  41  Pa.  St.  9;  Wilson  v.  Johns  Island 
Church,  2  Rich  Eq.  192;  Lucas  v.  Case,  9  Bush,  297;  Chase  v.  Chaney,  58 
111.  508;  State  v.  Farris,  45  Mo.  183;  Moseman  v.  Heitshousen  (Neb.), 
69  N.  W.  957;  Lemp  o.  Raven,  113  Mich.  375.  See  Fitzgerald  ».  Robinson, 
112  Mass.  371,  in  which  it  was  held  that  an  excommunication  would 
not  be  permitted  to  affect  property  and  other  civil  rights. 

2  See  ante,  §  63 

§    65 


RELIGIOUS  CRITICISM  AND  BLASPHEMY  DISTINGUISHED.      201 

receive  their  highest  sanction  and  their  greatest  efficacy, 
as  a  civilizing  force,  in  becoming  the  requirements  of 
religion.  A  high  morality  is  inconsistent  with  a  state  of 
chronic  irreligiousness.  Religiousness  is  not  here  em- 
ployed as  a  synonym  for  membership  in  some  established 
religious  body.  Deeply  religious  natures  are  found  outside 
of  such  bodies  as  well  as  inside.  Anything,  therefore,  that 
is  calculated  to  diminish  the  people's  religious  inclinations 
is  detrimental  to  the  public  welfare,  and  may  therefore  be 
prohibited.  Public  contumely  and  ridicule  of  a  prevalent 
religion  not  only  offend  against  the  sensibilities  of  the 
believers,  but  likewise  threaten  the  public  peace  and  order 
by  diminishing  the  power  of  moral  precepts.  Inasmuch, 
therefore,  as  Christianity  is  essentially  the  religion  of  this 
country,  any  defamation  of  its  founder  or  of  its  institutions, 
as  well  as  all  malicious  irreverence  towards  Deity,  must  and 
can  be  prohibited.  These  acts  or  offenses  are  generally 
comprehended  under  the  name  of  blasphemy. 

Mr.  Justice  Story,  in  the  Girard  will  case,  said  that, 
"although  Christianity  be  a  part  of  the  common  law  of 
the  State,  yet  it  is  only  so  in  the  qualified  sense,  that  its 
divine  origin  and  truth  are  admitted,  and  therefore  it  is  not 
to  be  maliciously  and  openly  reviled  and  blasphemed, 
against,  to  the  annoyance  of  believers  or  the  injury  of  the 
public."  1  The  "  divine  origin  and  truth  "  of  the  Christian 
religion  are  not  admitted  by  the  common  law  of  this  coun- 
try. The  only  thing  that  the  law  can  admit,  in  respect  to 
Christianity,  is  its  potent  influence  in  carrying  on  the  devel- 
opment of  civilization,  and  more  especially  in  compelling 
the  recognition  and  observance  of  moral  obligations.  If 
the  laws  against  blasphemy  rested  upon  the  admission  by 
the  law  of  the  "  divine  origin  and  truth  "  of  the  Christian 
religion,  they  would  fall  under  the  constitutional  prohibi- 
tions, which  withdraw  religion  proper  from  all  legal  control. 

1  Vidal  v.  Girard's  Exrs.,  2  How.  127. 

§  65 


202      STATE   REGULATION   OF   MORALITY   AND    RELIGION. 

Blasphemy  is  punishable,  because,  as  already  stated,  it 
works  an  annoyance  to  the  believer  and  an  injury  to  the 
public.  While  religion  proper  is  by  the  constitutional 
limitations  taken  out  of  the  field  of  legislation,  they  were 
«'  never  meant  to  withdraw  religion  in  general,  and  with  it 
the  best  sanctions  of  moral  and  social  obligation  from  all 
consideration  and  notice  of  the  law.  *  *  *  To  construe  it 
as  breaking  down  the  common-law  barriers  against  licentious, 
wanton  and  impious  attacks  upon  Christianity  itself,  would 
be  an  erroneous  construction  of  its  ( their  )  meaning. "  l  But 
it  is  only  as  a  moral  power  that  any  religion  can  receive  legal 
recognition.  "The  common  law  adapted  itself  to  the 
religion  of  the  country  just  so  far  as  was  necessary  for  the 
peace  and  safety  of  civil  institutions ;  but  it  took  cognizance 
of  offenses  against  God  only  when,  by  their  inevitable 
effects,  they  became  offenses  against  man  and  his  temporal 
security."2 

The  essential  element  of  blasphemy  is  malicious  impiety. 
"  In  general,  blasphemy  may  be  described  as  consisting 
in  speaking  evil  of  the  Deity  with  an  impious  purpose 
to  derogate  from  the  divine  majesty,  and  to  alienate 
the  minds  of  others  from  the  love  of  and  reverence  for 
God.  It  is  purposely  using  words  concerning  God,  calcu- 
lated and  designed  to  impair  and  destroy  the  reverence, 
respect  and  confidence  due  to  Him,  as  the  intelligent  Creator, 
Governor  and  Judge  of  the  world.  It  embraces  the  idea  of 
detraction,  when  used  towards  the  Supreme  Being;  as 
*  calumny '  usually  carries  the  same  idea  when  applied  to 
an  individual.  It  is  a  willful  and  malicious  attempt  to 
lessen  men's  reverence  of  God  by  denying  His  existence,  or 
His  attributes  as  an  intelligent  Creator,  Governor  and  Judge 
of  men,  and  to  prevent  their  having  confidence  in  Him  as 
such."3 

1  People  v.  Buggies,  8  Johns.  289  (5  Am.  Dec.  335). 

2  State  v.  Chandler,  2  Harr.  553. 

3  Shaw,  Ch.  J. ,  in  Commonwealth  v.  Kneeland,  20  Pick.  206.    See,  also, 

§  65 


RELIGIOUS  CRITICISM  AND  BLASPHEMY  DISTINGUISHED.      203 

The  laws  against  blasphemy,  at  least  in  respect  to  the 
more  special  details,  have  reference  solely  to  Christianity. 
If  their  authority  rested  on  the  religious  character  of  the 
offense,  the  equality  of  all  religion  before  the  law  would  re- 
quire that  these  laws  should  embrace  blasphemy,  against 
whatever  religion  it  may  be  directed.  And  while  that  would 
be,  under  our  constitutional  provisions,  both  permissible 
and  commendable,  since  the  laws  are  designed  to  prevent 
widespread  irreligiousness  and  disturbance  of  the  public 
order,  there  would  be  no  illegal  discrimination,  if  the  pro- 
visions of  the  law  should  in  the  main  be  confined  to  blas- 
phemy against  the  Christian  religion.  "  Nor  are  we  bound, 
by  any  expressions  in  the  constitution,  as  some  have 
strongly  supposed,  either  not  to  punish  at  all,  or  to  punish 
indiscriminately,  the  like  attacks  upon  the  religion  of  Ma- 
homet or  the  Grand  Lama;  and  for  this  plain  reason,  that 
the  case  assumes  that  we  are  a  Christian  people,  and  the  mor- 
ality of  the  country  is  deeply  ingrafted  in  Christianity."1 

In  order  that  an  utterance  or  writing  may  be  considered 
a  legal  blasphemy,  it  must  be  accompanied  by  malice  and  a 
willful  purpose  to  offend  the  sensibilities  of  Christians. 
The  malice  or  evil  purpose  is  the  gravamen  of  the  wrong. 
The  very  same  words,  at  least  the  same  thoughts,  may, 
under  other  circumstances,  and  with  a  different  purpose, 
be  lawful;  and  the  free  expression  of  them  may  be 
guaranteed  by  the  constitutional  provisions  in  respect  to 
religious  liberty.  Religious  liberty  is  impossible  without 
freedom  of  expression  and  profession  of  one's  faith  and 
doctrines.  Religious  liberty  implies  the  utmost  freedom 
in  the  promulgation  of  the  creed  one  professes,  and 

Peoples.  Rugglea,  8  Johns.  289  (5  Am.  Dec.  335);  Updegraph  »,  Com., 
11  S.  &  R.  394 ;  State  v.  Chandler,  2  Harr.  563 ;  Andrew  v.  Bible  Society, 
4  Sandf .  156.  Profanity,  like  obscene  language,  may  always  be  prohibited. 
State  v.  Warren,  113  N.  C.  683;  Bodenhamer  ».  State,  60  Ark.  10;  Rat- 
teree  v.  State,  78  Ga.  335;  Mclver  v.  State  (Tex.  Cr.  Rep.),  29  S.  W.  1083. 
1  Kent,Ch.  J.,  in  People  v.  Ruggles,  8  Johns.  289  (5  Am.  Dec.  225). 

§    65 


204      STATE   REGULATION   OF   MORALITY   AND   RELIGION. 

exhortation  to  non-believers  to  embrace  that  faith.  The 
serious  and  honest  discussion  of  the  doctrinal  points  of  the 
Christian  or  any  other  religion  is  protected  from  infringe- 
ment by  our  constitutional  limitations.  But  no  one  can 
claim,  under  these  provisions  of  the  constitution,  the  right 
of  indulgence  in  "  offensive  levity,  or  scurrilous  and  oppro- 
brious language,"  which  serves  no  good  purpose,  and,  when 
done  in  public,  is  likely  to  bring  about  more  or  less  disturb- 
ance of  the  public  order.  Such  actions  and  such  language, 
whether  written  or  spoken,  constitute  a  nuisance,  which 
comes  within  the  jurisdiction  of  law.  It  is  legal  blasphemy. 
The  statute  against  blasphemy  "  does  not  prohibit  the 
fullest  inquiry  and  the  freest  discussion,  for  all  honest  and 
fair  purposes,  one  of  which  is  the  discovery  of  truth. 
It  admits  the  freest  inquiry,  when  the  real  purpose  is 
the  discovery  of  truth,  to  whatever  result  such  inquiries 
may  lead.  It  does  not  prevent  the  simple  and  sincere 
avowal  of  a  disbelief  in  the  existence  and  attributes  of  a 
supreme  intelligent  being,  upon  suitable  and  proper  occa- 
sions. And  many  such  occasions  may  exist ;  as  where  a 
man  is  called  a  witness,  in  a  court  of  justice  and  questioned 
upon  his  belief,  he  is  not  only  permitted,  but  bound,  by 
every  consideration  of  moral  honesty,  to  avow  his  unbelief, 
if  it  exists.  He  may  do  it  inadvertently  in  the  heat  of  de- 
bate, or  he  may  avow  it  confidentially  to  a  friend,  in  the 
hope  of  gaining  new  light  on  the  subject,  even  perhaps 
whilst  he  regrets  his  unbelief ;  or  he  may  announce  his 
doubts  publicly,  with  the  honest  purpose  of  eliciting  a  more 
general  and  thorough  inquiry,  by  public  discussion,  the  true 
and  honest  purpose  being  the  discovery  and  diffusion  of 
truth.  None  of  these  constitute  the  willful  blasphemy  pro- 
hibited by  this  statute."  1 

1  Com.  v.  Kneeland,  20  Pick.  206,  220,  see  Updegraph  v.  Com.,  11  S.  &  R. 

394;  People  v.  Ruggles,  8  Johns.  289  (5  Am.  Dec.  335).     In  speaking  of 

charitable  uses,  Judge  Duer,  in  Ayres  v.  Methodist  Church,  3  Sandf .  351, 

said :  "  If  the  Presbyterian  and  the  Baptist,  the  Methodist  and  the  Pro- 

§    65 


PERMISSIBLE  LIMITATIONS  UPON  UELIGIOUS  WORSHIP.      205 

§  66.   Permissible  limitations  upon  religious  worship. — 

While  the  constitution  of  the  United  States  prohibits  all 
interference  with  the  free  exercise  of  religion  according 
to  the  dictates  of  the  conscience,  and  guarantees  before 
the  law  a  substantial  equality  to  all  systems  of  religion, 
by  the  influence  of  natural  social  forces,  Christianity  has 
become  a  part  of  the  common  law  of  this  country  to  the 
extent  of  those  of  its  moral  precepts,  which  have  a  bear- 
ing upon  social  order,  and  the  breach  of  which  is  pro- 
nounced by  common  opinion  to  be  injurious  to  the  welfare 
of  society.  Immorality  and  crime,  according  to  public  sen- 
timent as  it  has  been  given  public  expression  in  the  laws  of 
the  country,  cannot  be  sanctioned  and  permitted  to  those, 
who  through  their  mental  aberrations  have  adhered  to  and 
professed  a  religion,  which  authorizes  and  perhaps  com- 
mands the  commission  of  what  is  pronounced  a  crime.  An 
act  is  still  a  crime,  notwithstanding  the  actor's  religious 
belief  in  its  justifiableness.  So  far,  therefore,  as  religious 
worship  involves  the  commission  of  a  crime,  or  constitutes 
a  civil  trespass  against  the  rights  of  others,  it  can  and  will 
be  prohibited.  As  Judge  Cooley  happily  expresses  it: 
"Opinion  must  be  free;  religious  error  the  government 
should  not  concern  itself  with ;  but  when  the  minority  of 
any  people  feel  impelled  to  indulge  in  practices  or  to  ob- 
serve ceremonies  that  the  general  community  look  upon  as 
immoral  excess  or  license,  and  therefore  destructive  of  pub- 
lic morals,  they  have  no  claim  to  protection  in  so  doing. 
The  State  can  not  be  bound  to  sanction  immorality  or 

testant  Episcopalian,  must  each  be  allowed  to  devote  the  entire  income  of 
his  real  and  personal  estate,  forever,  to  the  support  of  missions,  or  the 
spreading  of  the  Bible,  so  must  the  Roman  Catholic  his  to  the  endowment 
of  a  monastery  or  the  founding  of  a  perpetual  mass  for  the  safety  of  his 
soul;  the  Jew  his  to  the  translation  and  publication  of  the  Mishua,  or  the 
Talmud;  and  the  Mohametan  (if  in  that  colluries gentium  to  which  this 
city  [New  York],  like  ancient  Rome,  seems  to  be  doomed,  such  shall  be 
among  us),  the  Mohametan  his  to  the  assistance  or  relief  of  the  annual 
pilgrims  to  Mecca." 

§  66 


206       STATE    REGULATION    OF    MORALITY    AND    KELIGION. 

crime,  even  though  there  be  persons  in  a  community  with 
minds  so  perverted  or  depraved  or  ill-informed  as  to  believe 
it  to  be  countenanced  or  commanded  of  heaven.  And  the 
standard  of  immorality  or  crime  must  be  the  general  sense 
of  'the  people  embodied  in  the  law.  •  There  can  be  no 
other."  l  Thus  it  has  been  held  by  the  Supreme  Court  of 
the  United  States  that  the  religious  liberty  of  the  Mormons 
of  Utah  is  not  infringed  by  the  act  of  Congress  providing 
penalties  for  the  practice  of  polygamy,  which  is  sanctioned 
or  commanded  by  their  religious  creed.2  In  many  of  the 
State  constitutions,  —  notably,  California,  Colorado,  Con- 
necticut, Florida,  Georgia,  Illinois,  Maryland,  Minnesota, 
Mississippi,  Missouri,  Nevada,  New  York,  South  Carolina, 
there  are  provisions  to  the  effect  that  the  constitutional 
guaranty  of  religious  liberty  is  not  to  justify  or  sanction 
immoral  or  licentious  acts,  the  practice  of  which  threatens 
the  peace  or  moral  order  of  society. 

Under  the  English  law,  legacies  of  money  to  be  expended 
for  masses  for  the  repose  of  the  soul  of  a  deceased  person, 
whether  it  be  the  testatrix  or  some  one  else,  was  declared 
void,  because  it  was  a  gift  for,  what  was  declared  by  the 
English  statute,  a  superstitious  use.  The  prohibition  of  such 
a  legacy  was  prompted  by  the  then  existing  religious 
antagonism  and  intolerance.  It  would  hardly  require  an 
adjudication  to  satisfy  us  of  the  unconstitutionality  of  such 
a  law  under  our  constitutional  guaranties  of  religious 
liberty;  but  in  the  case  cited  below  this  ruling  has  been 
made  by  the  New  Jersey  Supreme  Court.3 

Of  late  years  the  question  of  police  regulation  of  religious 

1  Cooley  on  Torts,  34. 

2  Reynolds  v.  United  States,  98  U.  S.  145. 

3  Kerrigan  v.  Tabb,  N.  J.  Eq.  39  A.  701.    In  this  case  the  legacy  was 
to  a  priest  to  be  expended  (or  masses  for  the  repose  of  the  soul  of  the 
testatrix.      The  legacy  was  held  to  be  valid  and  protected  by  this  consti- 
tutional provision  for  religious  liberty.    See,  also,  to  same  effect,  Hoeff- 
ner  v.  Clogan,  171  111.  462;  Sherman  v.  Baker,  20  R.  I.  613. 

§    66 


PERMISSIBLE  LIMITATIONS  UPON  RELIGIOUS  WORSHIP.      207 

worship  has  assumed  a  rather  important  as  well  as  curious 
phase,  in  consequence  of  the  formation  of  religious  unions, 
variously  called  Salvation  Army,  Band  of  Holiness,  etc., 
which  parade  in  the  public  streets,  conduct  religious  exer- 
cises in  the  market  place,  or  other  prominent  thorough- 
fares, and  do  other  things  of  a  like  character;  with  the 
desire  to  attract  the  attention  of  those  classes  of  society 
which  are  beyond  the  reach  of  the  ordinary  Christian  and 
moral  influences.1  As  long  as  these  unions  are  quiet  and 
peaceable  in  their  actions,  neither  creating  any  public  dis- 
turbance nor  obstructing  the  thoroughfare,  and  are  not  by 
their  utterances  so  rudely  offensive  to  the  public  sentiment, 
as  tinged  and  colored  by  the  prevailing  influence  of  Chris- 
tianity as  to  endanger  the  public  peace,  there  will  probably 
be  no  question  raised  against  the  continuance  of  their  pub- 
lic parades  and  exhibitions.  But  suppose  an  Israelite,  a 
Chinaman,  a  Mohammedan,  the  infidel  or  the  atheist,  should 
undertake  in  the  public  streets  to  preach  upon  the  peculiar 
doctrines  of  their  respective  religions,  and  in  their  efforts 
to  win  disciples  should  enter  upon  a  free  and  searching 
criticism  of  the  distinctive  doctrines  of  the  Christian  relig- 
ion ;  will  they  be  permitted  to  proceed  with  their  efforts  at 
proselytism,  and  outrage  the  prevailing  sentiment  by  utter- 
ances, which  however  honest  are  held  by  the  majority  of 
the  community  to  be  little  less  than  blasphemous?  If  the 
public  peace  is  endangered  by  these  public  meetings,  they 
can  be  lawfully  prohibited,  whether  the  doctrines  taught 
be  Christian  or  Hebrew,  infidel  or  Mohammedan.  All 
religions  are  equal  before  the  law,  and  the  Christian  has  no 
more  right  to  disturb  the  public  peace  by  preaching  the  gos- 
pel of  Christ  in  the  streets  of  the  Jewish  or  other  unchristian 
quarter  of  a  city,  than  has  the  Jew  or  infidel  a  right  to 
threaten  the  public  peace  by  the  promulgation  of  his  relig- 

1  See  State  v.  White,  64  N.  H.  48,  where  beating  a  drum  in  the  streets 
was  held  to  be  disorderly  conduct,  notwithstanding  it  constituted  a  part 
of  a  religious  exercise  of  the  Salvation  Army. 

§   66 


208       STATE    REGULATION   OF   MORALITY   AND    RELIGION. 

ious  doctrines  in  a  Christian  community.  But  would  it  be 
permissible  to  prohibit  by  law  discourses  which  are  designed 
to  assail  and  supplant  the  Christian  religion  with  some  other 
creed?  The  quiet  and  peace  of  mind  of  a  Christian 
believer  is  greatly  disturbed,  and  his  inalienable  right  to 
«*  the  pursuit  of  happiness  "  invaded,  by  hearing  upon  the 
public  streets  and  highways  animadversions  and  free  criti- 
cisms of  the  Christian  doctrines  and  institutions,  in  whose 
divine  origin  and  truth  he  has  implicit  faith.  And  being  a 
trespass  it  would  seem  permissible  to  prohibit  all  such  dis- 
cussions. But  the  Jew's  or  infidel's  right  to  "  the  pursuit 
of  happiness"  is  as  much  invaded  by  the  Christian 
exhorter's  animadversions  upon  their  religious  tenets,  and 
is  entitled  to  equal  protection.  We  therefore  conclude, 
first,  that  public  religious  discussions  are  not  nuisances  at 
common  law,  that  is,  independently  of  statute,  unless  they 
incite  the  populace  to  breaches  of  the  peace,  or  obstruct 
the  thoroughfare,  and  in  that  case  the  breach  of  the  peace 
or  obstruction  of  locomotion  constitutes  the  offense  against 
the  law  rather  than  the  discourse.  However,  on  the  ground 
that  all  religious  discussions  on  the  public  streets  are  more 
or  less  calculated  to  disturb  the  mental  rest  and  quiet  of 
those  whose  religious  opinions  are  assailed,  we  hold  that 
these  public  meetings  can  be  prohibited  altogether.  But  a 
law  which  prohibited  those  only,  which  are  conducted  by 
the  opponents  of  the  Christian  religion,  would  be  uncon- 
stitutional on  account  of  the  discrimination  against  other 
religions  and  in  favor  of  the  Christian  religion.  All  relig- 
ious discourses  in  the  street  and  other  public  places  should 
be  prohibited  or  none  at  all. 

§  67.  Religious  discrimination  in  respect  to  admissi- 
foility  of  testimony. — According  to  the  English  common 
law,  no  one  was  a  competent  witness  who  did  not  believe 
in  the  existence  of  God,  and  of  a  state  of  rewards  and  pun- 
ishments hereafter.  This  rule  has  been  recognized  and  en- 
§  67 


SUNDAY   LAWS.  209 

forced  to  its  fullest  extent  in  the  earlier  cases,1  and  it  was 
almost  universally  required  by  the  courts  of  this  country, 
that  the  witness,  in  order  to  be  competent,  should  believe 
in  a  superintending  Providence,  who  can  and  would  punish 
perjury.2  The  reason  for  the  rule  was  declared  to  be,  that 
without  such  belief  an  oath  could  not  be  made  binding  upon 
the  conscience,  and  such  a  person's  testimony  was  there- 
fore unworthy  of  belief.  The  growth  of  public  opinion 
towards  the  complete  recognition  of  religious  liberty  is 
exerting  its  influence  upon  this  rule,  and  in  many  of  the 
State  constitutions  there  are  provisions  which  abolish  this 
and  every  other  religious  qualification  of  witnesses.3  Mr. 
Cooley  says,  "  wherever  the  common  law  remains  un- 
changed, it  must,  we  suppose,  be  held  no  violation  of  re- 
ligious liberty  to  recognize  and  enforce  its  distinction." 
But  it  would  appear  to  us  that  the  enforcement  of  such  a 
law  would  violate  the  constitutional  guaranty  of  religious 
liberty,  and  hence  the  enactment  of  this  constitutional  pro- 
vision was  an  implied  repeal  of  the  common-law  require- 
ment.4 

§  68.  Sunday  laws. — The  most  common  form  of  legal 
interference  in  matters  of  religion  is  that  which  requires  the 
observance  of  Sunday  as  a  holy  day.  In  these  days,  the 
legal  requirements  do  not  usually  extend  beyond  the  com- 
pulsory cessation  of  labor,  the  maintenance  of  quiet  upon 
the  streets,  and  the  closing  of  all  places  of  amusements; 

1  See  Atwood  ».  Welton,  7  Conn.  66. 

2  See  Arnold  v.  Arnold,  13  Vt.  362;  Hunscom  v.  Hunscom,  15  Mass. 
184;  Butts  v   Swartwood,  2  Cow.  431;  Cubbison  v.  McCreery,   7  Watt8 
&  S.  262;  Jones  v.  Harris,  1  Strobh.  160;  Blocker  v  Burness,  2  Ala.  354; 
Brock  v.  Milligan,  10  Ohio,  121;  Central  R.  R.  Co.  v.  Rockafellow,  17 
111.  541. 

8  Such  a  provision  is  to  be  found  in  Arkansas,  California,  Florida, 
Indiana,  Iowa,  Kansas,  Michigan,  Minnesota,  Missouri,  Nebraska,  Ne- 
vada, New  York,  Ohio,  Oregon,  Wisconsin. 

*  See  Perry's  Case,  3  Gratt.  632. 

14  §    68 


210      STATE    REGULATION    OF   MORALITY    AND    RELIGION. 

but  the  public  spirit  which  calls  for  a  compulsory  observ- 
ance of  these  regulations  is  the  same  which  in  the  colonial 
days  of  New  England  imposed  a  fine  for  an  unexcused  ab- 
sence from  divine  worship.  Although  other  reasons  have 
been  assigned  for  the  State  regulation  of  the  observance  of 
Sunday,  in  order  to  escape  the  constitutional  objections 
that  can  be  raised  against  it,  if  it  takes  the  form  of  a 
religious  institution,1  those  who  are  most  active  in  securing 
the  enforcement  of  the  Sunday  laws  do  so,  because  of  the 
religious  character  of  the  day,  and  not  for  any  economical 
reason.  While  it  is  not  true  that  the  institution  of  a  special 
day  of  rest  for  all  men  is  "  a  purely  religious  idea,"  2  it  is 
because  of  the  strong  influence  of  the  religious  idea  that 
there  are  active  supporters  of  such  laws.  Whatever  eco- 
nomical reasons  may  be  urged  in  favor  of  the  Sunday  laws, 
requiring  the  observance  of  the  day  as  a  day  of  general 
rest  from  labor,  their  influence  upon  the  people  would  be 
powerless  to  secure  an  enforcement  of  these  laws.  The 
effectiveness  of  the  laws  is  measured  by  the  influence  of  the 
Christian  idea  of  Sunday  as  a  religious  institution.  "  De- 
rived from  the  Sabbatical  institutions  of  the  ancient  He- 
brew, it  has  been  adopted  into  all  the  creeds  of  succeeding 
religious  sects  throughout  the  civilized  world ;  and  whether 
it  be  the  Friday  of  the  Mohammedan,  the  Saturday  of  the 
Israelite,  or  the  Sunday  of  the  Christian,  it  is  alike  fixed  in 
the  affections  of  its  followers,  beyond  the  power  of  eradi- 
cation, and  in  most  of  the  States  of  our  confederacy,  the  aid 
of  the  law  to  enforce  its  observance  has  been  given  under 
the  pretense  of  a  civil,  municipal  or  police  regulation."3 

But  Sunday,  as  a  religious  institution,  can  receive  no 
legal  recognition.  It  is  manifest  that  the  religious  liberty 
of  the  Jew  or  the  infidel  would  be  violated  by  a  compulsory 
observance  of  Sunday  as  a  religious  institution.  While 

1  See  post. 

2  Terry,  Ch.  J.,  in  Ex  parte  Newman,  9  Gal.  509. 
8  Opinion  of  Terry,  Ch.  J.t  9  Cal.,  p.  509. 

§    68 


SUNDAY   LAWS.  211 

such  a  regulation,  if  it  did  not  extend  to  a  prohibition  of  the 
Jew's  religious  observance  of  the  seventh  day,  or  to  a  com- 
pulsory attendance  upon  Christian  worship,  may  not  amount 
to  a  direct  infringement  of  his  religious  liberty,  he  may  still 
reasonably  claim  that  it  operates  indirectly  as  a  discrimina- 
tion against  his  religion,  by  requiring  him  to  respect  Sunday 
as  a  day  of  rest,  while  his  conscience  requires  of  him  a  like 
observance  of  Saturday.1  But  the  legal  establishment  of 
Sunday  as  a  religious  institution,  would  violate  the  Christian's 
religious  liberty,  as  much  as  that  of  the  Jew.  The  compul- 
sory observance  of  a  religious  institution  against  conscience 
is  no  more  a  violation  of  the  constitutional  limitations  than 
a  like  compulsion  in  conformity  with  one's  religious  convic- 
tions. "  The  fact  that  the  Christian  voluntarily  keeps  holy 
the  first  day  of  the  week  does  not  authorize  the  legislature 
to  make  that  observance  compulsory.  The  legislature 
cannot  compel  a  citizen  to  do  that  which  the  constitution 
leaves  him  free  to  do,  or  omit,  at  his  election."  2  We 
therefore  conclude  that  Sunday  laws,  so  far  as  they  require 
a  religious  observance  of  the  day,  are  unconstitutional,  and 
cannot  be  enforced.  If  these  laws  can  be  sustained  at  all, 
they  must  be  supported  by  some  other  unobjectionable 
reasons.3  But  there  have  been  decisions  in  favor  of  the 


1  Cooley's  Const.  Lira.  *476. 

2  Burnett,  J.,  in  Ex  parte  Newman,  9  Cal.  510. 

8  "  Under  the  constitution  of  this  State,  the  legislature  cannot  pass  any 
act,  the  legitimate  effect  of  which  is  forcibly  to  establish  any  merely 
religious  truth,  or  enforce  any  merely  religious  observances.  The  Legisla- 
ture has  no  power  over  such  a  subject.  When  therefore  a  citizen  is  sought 
to  be  compelled  by  the  legislature  to  do  any  affirmative  religious  act  or  to 
refrain  from  doing  anything,  because  it  violated  simply  a  religious  princi- 
ple or  observance,  the  act  is  unconstitutional,"  Burnett,  J.,  in  Ex  parte 
Newman,  9  Cal.  510,  See,  also,  Com.  v  Has,  122  Mass.  40,  Com.  v. 
Specht,  8  Pa.  St.  312;  Com.  v.  Wolf,  3  Serg.  &  R.  48;  Com  v.  Nesbit,  34 
Pa.  St.  398;  Hudson  v,  Geary,  4  R.  I  485;  State  v.  Bait.  &  O.  R.  R.,  15 
W.  Va.  362.  (36  Am.  Rep,  803)  ;  Charleston  v.  Benjamin,  2  Strobh.  508; 
McGatrick  v.  Wason,  4  Ohio  St,  566;  Johns  v.  State,  78  Ind.  332;  Bohl  v. 
State,  3  Tex-  App.  683;  State  v.  Bott,  31  La.  Ann.  663  (33  Am  Rep.  224). 

$    68 


212      STATE    REGULATION    OF    MORALITY    AND    RELIGION. 

compulsory  observance  of  Sunday  as  a  religious  institu- 
tion.1 

Notwithstanding  the  strictly  religious  aspect  the  observ- 
ance of  a  general  day  of  rest  has  always  assumed  among 
all  people,  and  under  all  systems  of  religion;  although  the 
observance  of  such  a  day  has  always  been  taught  to  be  a 
divine  injunction;  it  is  claimed,  with  much  show  of  rea- 
son, that  this  custom,  even  as  a  religious  institution,  was 
originally  established  as  a  sanitary  regulation,  designed  to 
procure  for  the  individual  that  periodical  rest  from  labor, 
which  is  so  necessary  to  the  recuperation  of  the  exhausted 
energies  ;  and  the  religious  character  was  given  to  it,  in 
order  to  secure  its  more  universal  observance.  In  the  primi- 
tive ages  of  all  nations,  theology,  medicine  and  law  were  ad- 
ministered by  the  same  body  of  men ;  and  it  was  but  natural 
that  they  should  apply  to  a  much  needed  sanitary  regula- 

1  Scott,  J.,  in  State  v.  Ambs,  20  Mo.  214,  216,  uses  this  language: 
"  Those  who  question  the  constitutionality  of  our  Sunday  laws  seem  to 
imagine  that  the  constitution  is  to  be  regarded  as  an  instrument  formed 
for  a  State  composed  of  strangers  collected  from  all  quarters  of  the  globe, 
each  with  a  religion  of  his  own,  bound  by  no  previous  social  ties,  nor 
sympathizing  in  any  common  reminiscences  of  the  past;  that  unlike 
ordinary  laws,  it  is  not  to  be  construed  in  reference  to  the  State  and  con- 
dition of  those  for  whom  it  was  intended,  but  that  the  words  in  which  it  is 
comprehended  are  alone  to  be  regarded  without  respect  to  the  history  of 
the  people  for  whom  it  was  made.  It  is  apprehended,  that  such  is  not  the 
mode  by  which  our  organic  law  is  to  be  interpreted.  We  must  regard  the 
people  for  whom  it  was  ordained.  It  appears  to  have  been  made  by  Chris- 
tian men  The  constitution  on  its  face  shows  that  the  Christian  religion 
was  the  religion  of  its  framers.  *  *  *  They,  then,  who  engrafted  on 
our  constitution  the  principles  of  religious  freedom  contained  therein, 
did  not  regard  the  compulsory  observance  of  Sunday,  as  a  day  of  rest, 
a  violation  of  those  principles.  They  deemed  a  statute  compelling  the 
observance  of  Sunday  necessary  to  secure  a  full  enjoyment  of  the  rights 
of  conscience.  How  could  those  who  conscientiously  believe  that  Sun- 
day is  hallowed  time,  to  be  devoted  to  the  worship  of  God,  enjoy  them- 
selves in  its  observance  amidst  all  the  turmoil  and  bustle  of  worldly 
pursuits,  amidst  scenes  by  which  the  day  was  desecrated,  which  they 
conscientiously  believe  was  holy?"  See  also,  Stover  v.  State,  10  Ark. 
259,  263;  Lindenmuller  v.  People,  33  Barb.  568. 
§  68 


SUNDAY   LAWS.  213 

tion  the  spiritual  influence  of  theology,  and  the  obligation 
of  law.  Under  this  view  of  the  matter,  the  observance  of 
a  day  of  rest  was,  in  the  order  of  history,  primarily,  a 
sanitary  regulation,  and  secondarily,  a  religious  institution. 
Under  our  constitutional  limitations,  it  is  only  in  its  primary 
character  that  an  observance  of  the  law  can  be  exacted. 

All  sanitary  regulations  operate  directly  upon  the  indi- 
vidual ;  and  from  the  medical  standpoint,  their  primary  ob- 
ject is  the  benefit  to  the  individual.  It  is  so  likewise  with 
the  observance  of  a  day  of  rest.  It  is  the  individual  which 
is  primarily  benefited  by  the  cessation  from  labor,  and  the 
community  or  society  is  only  remotely  and  indirectly  bene- 
fited by  the  increased  vitality  of  his  offspring  and  possibly 
relief  from  the  public  burden  of  an  early  decrepitude,  the 
result  of  overwork.  The  failure  to  observe  this  law  of  nature, 
calling  for  rest  from  labor  on  every  seventh  day,  —  for  this 
has  been  demonstrated  by  the  experience  of  ages  to  be  a  law 
of  nature, —  is,  like  every  other  inordinate  gratification  of 
one's  desires, a  vice, and  not  the  subject  of  law.  The  possible 
evil,  flowing  from  this  "  vice,"  will  not  justify  the  State  au- 
thorities in  entering  the  house  and  premises  of  a  citizen,  and 
there  compel  him  to  lay  down  his  tool  or  his  pen,  and  refrain 
from  labor,  on  the  ground  that  his  unremittent  toil  will  pos- 
sibly do  damage  to  society  through  his  children.  How  can 
it  be  proved  a  priori  that  the  man  needs  the  rest  that  the 
law  requires  him  to  take  ?  He  may  be  fully  able  to  continue 
his  labor,  at  least  during  a  portion  of  the  Sunday,  without 
doing  any  damage  to  anybody.1  Furthermore,  it  may  be 

1  "  Again  it  may  be  well  considered  that  the  amount  of  rest  which 
would  be  required  by  one  half  of  society  may  be  widely  disproportionate 
to  that  required  by  the  other.  It  is  a  matter  of  which  each  individual 
must  be  permitted  to  judge  for  himself  according  to  his  own  instincts 
and  necessities.  As  well  might  the  legislature  fix  the  days  and  hours  for 
work,  and  enforce  their  observance  by  an  unbending  rule  which  shall  be 
visited  alike  upon  the  weak  and  strong;  whenever  such  attempts  are 
made,  the  law-making  power  leaves  its  legitimate  sphere,  and  makes  an 
incursion  into  the  realms  of  physiology,  and  its  enactments  like  the 

§   68 


214      STATE   REGULATION   OF   MORALITY  AND    RELIGION. 

shown  that  he  has  for  special  reasons,  or  because  his  relig- 
ion requires  it,  abstained  from  labor  for  the  required  time 
on  some  other  day.  And  having  done  so  from  the  indi- 
vidual standpoint,  he  has  substantially  complied  with  the 
requirements  of  the  law.1  Then  must  the  conclusion  be 
reached,  that  there  are  no  satisfactory  grounds  upon  which 
Sunday  laws  can  be  sustained,  and  the  constitutional  ob- 
jections avoided? 

It  matters  not  what  is  the  moving  cause,  or  what  amount 
of  gratification  is  had  out  of  the  act,  the  commission  of  a 
trespass  upon  another's  rights,  or  the  reasonable  fear  of  such 
a  trespass,  always  constitutes  sufficient  ground  for  the  exer- 
cise of  police  power.  The  prevention  of  a  trespass  is  the  in- 
variable purpose  of  a  police  regulation.  It  is  the  right  of 
every  one  to  enjoy  quietly,  and  without  disturbance,  his 
religious  liberty,  and  his  right  is  invaded  as  much  by  noise 
and  bustle  on  his  day  of  rest,  varying  only  in  degree,  as  by 
a  prohibition  of  religious  worship  according  to  one's  convic- 
tions. Noisy  trades  and  amusements,  and  other  like  dis- 
turbances of  the  otherwise  impressive  quiet  of  a  Sunday, 
may  therefore  be  prohibited  on  that  day,  in  complete  con- 
formity with  the  limitations  of  police  power.2  But  the 
prosecution  of  noiseless  occupations,  and  the  indulgence  in 


sumptuary  laws  of  the  ancients,  which  prescribe  the  mode  and  texture  of 
people's  clothing,  or  similar  laws  which  might  prescribe  and  limit  our 
food  and  drink,  must  be  regarded  as  an  invasion,  without  reason  or 
necessity,  of  the  natural  rights  of  the  citizens,  which  are  guaranteed  by 
the  fundamental  law."  Terry,  Ch.  J.,  Ex  parte  Newman,  9  Cal.  508. 

1  "  It  appears  to  us  that  if  the  benefit  of  the  individual  is  alone  to  be 
considered,  the  argument  against  the  law  which  he  may  make,  who  has 
already  observed  the  seventh  day  of  the  week,  is  unanswerable."    Cooley's 
Const.  Lim.  *476,  *477. 

2  "  While  I  am  thus  resting  on  the  Sabbath  in  obedience  to  law,  it  is 
right  and  reasonable  that  my  rest  should  not  be  disturbed  by  others. 
Such  a  disturbance  by  others  of  my  rest,  is  in  its  nature  a  nuisance, 
which  the  law  ought  to  punish,  and  Sabbath-breaking  has  been  frequently 
classed  with  nuisances  and  punished  as  such."    State  v.  B.  &  O.  R.  R.,  15 
W.  Va.  362  (36  Am.  Rep.  803,  814.) 

$    68 


SUNDAY   LAWS.  215 

quiet,  orderly  amusements,1  since  they  involve  no  violation 
of  private  right,  cannot  be  prohibited  by  law  without  in- 
fringing upon  the  religious  liberty  of  those  who  are  thus 
prevented,  and  such  regulations  would  therefore  be  uncon- 
stitutional. It  is  barely  possible,  but  doubtful,  that  a  law 
could  be  sustained  under  the  principles  here  advanced, 
which  required  that  the  front  doors  of  stores  and  places  of 
amusement  should  be  kept  closed  on  Sunday,  but  not 
otherwise  interfering  with  the  noiseless  occupations  and  di- 
versions. The  total  prohibition  of  such  employments  and 
labor  on  Sunday,  except  possibly  for  a  reason  to  be  sug- 
gested and  explained  later,  could  only  be  justified  by  the 
religious  character  of  the  day,  and  we  have  already  seen 
that  that  aspect  of  Sunday  cannot  be  taken  into  account,  in 
framing  the  Sunday  laws. 

But  there  is,  perhaps,  a  constitutional  reason  why  the  pro- 
hibition of  labor  on  Sunday  should  be  extended  to  other 
than  noisy  trades  and  employments.  The  reason  calls  for 
the  avoidance  of  an  indirectly  threatened  trespass,  rather 
than  the  prohibition  of  a  direct  invasion  of  right.  In  the 
ideal  state  of  nature,  when  free  agency  and  independence  of 
the  behests  of  others  may  be  considered  factual,  the  prose- 
cution of  a  noiseless  trade  or  other  occupation  could  not  in 

1  In  New  York  it  has  been  held  in  a  recent  case  that  a  law  is  constitu- 
tional which  prohibits  fishing  on  Sunday,  even  within  the  grounds  of  a 
private  club.  People  v.  Moses,  65  Hun,  161;  s.  c.  HON.  Y.  214.  And  in 
Missouri  it  has  been  held  that  athletic  sports  may  be  prohibited  on  Sun- 
day. St.  Louis  Agricultural  &  Mechan.  Assn.  v.  Delano,  108  Mo.  217; 
State  v.  Williams,  35  Mo.  App.  541.  In  Rucker  v.  State,  67  Miss.  328,  it 
was  held  that  the  law  which  prohibited  playing  at  cards  or  dice  on  Sun- 
day applied  only  to  the  doing  of  these  things  in  public,  and  did  not 
include  such  a  game  played  in  private.  See  also  Gunn  v.  State,  89  Ga. 
341  (hunting);  State  v.  O'Rourke,  35 Neb.  614  (base  ball);  State  ».  Hog- 
never,  152  Ind.  652  (do.) .  So  far  as  these  cases  uphold  the  constitutional 
right  of  the  legislature  to  prohibit  on  Sunday  the  indulgence  in  quiet 
amusements,  they  can  be  supported  on  no  other  ground  than  that  the 
State  has  the  power  to  punish  individuals  who  do  not  conform  to  the 
religious  observance  of  the  day. 

6   68 


216      STATE    REGULATION    OF    MORALITY    AND    RELIGION. 

any  sense  be  considered  as,  either  constituting  a  trespass, 
or  threatening  one.  Each  man,  being  left  free  to  do  as  he 
pleased,  would  then  have  the  equal  liberty  of  joining  in  the 
religious  observance  of  the  day  or  of  continuing  his  labor, 
subject  to  the  single  condition,  that  he  must  not  in  doing  so 
disturb  the  religious  worship  of  others.  But  we  are  not  liv- 
ing in  a  state  of  nature.  Whatever  the  metaphysicians  or 
theologians  may  tell  us  about  free  will,  in  the  complex  so- 
ciety of  the  present  age, "the  individual  is  a  free  agent  to 
but  a  limited  degree.  He  is  in  the  main  but  the  creature 
of  circumstances.  Like  the  shuttle,  he  may  turn  to  the 
right  or  to  the  left,  but  the  web  of  human  events  is  woven, 
unaffected  by  this  freedom  of  action.  Those  who  most 
need  the  cessation  from  labor  are  unable  to  take  the  nec- 
essary rest,  if  the  demands  of  trade  should  require  their 
uninterrupted  attention  to  business.  And  if  the  law  did 
not  interfere,  the  feverish,  intense  desire  to  acquire  wealth, 
so  thoroughly  a  characteristic  of  the  American  nation,  in- 
citing a  relentless  rivalry  and  competition,  would  ultimately 
prevent,  not  only  the  wage-earners,  but  likewise  the  capital- 
ists and  employers  themselves,  from  yielding  to  the  warn- 
ings of  nature,  and  obeying  the  instinct  of  self-preservation 
by  resting  periodically  from  labor,  even  if  the  mad  pursuit 
of  wealth  should  not  warp  their  judgment  and  destroy  this 
instinct.  Remove  the  prohibition  of  law,  and  this  whole- 
some sanitary  regulation  would  cease  to  be  observed.  No 
one,  if  he  would,  could  do  so.  The  prohibition  of  labor 
for  these  reasons  may  be  contradictory  of  the  constitutional 
affirmation  of  the  equality  of  all  men  ;  and  the  prohibitory 
law  may  be  practically  unenforcible;  but  it  would  be  diffi- 
cult to  establish  any  positive  constitutional  objection  to 
it.1  It  has  been  urged  that  this  law,  when  founded  upon 

1  See  post,  §  206.  The  position  assumed  in  the  text,  in  regard  to  noise- 
less occupations,  has  been  adopted  in  several  recent  cases,  in  which  laws 
were  sustained,  as  a  constitutional  exercise  of  police  power,  which  pro- 
hibited barbers  from  plying  their  trade  on  Sunday.    People  v.  Havnor, 
§  68 


SUNDAY   LAWS.  217 

this  reason,  of  protection  to  the  individual,  may  be  sus- 
tained, if  it  was  confined  in  its  operations  to  slaves, 
minors,  apprentices  and  others  who  are  required  to  obey 
the  commands  of  others,  and  designed  to  protect  them 
from  the  cruelty  of  incessant  toil.1  But  the  slave  or 

149  N.  Y.  195  (quoting  text);  State  v.  Granneman,  132  Mo.  326;  People 
».  Buttling  (N.  Y.),  13  Misc.  Ref.  587;  35  N.  Y.  S.  19;  People  v.  Bellett, 
99  Mich.  151  (quoting  text)  ;  Keck  v.  City  of  Gainesville,  S8  Ga.  423.  In 
Eden  v.  People,  161  111.296;  Nesbit  v.  State  (Kans.  App.),  54  P.  326; 
State  v.  Petit  (Minn.),  77  N.  W.225;  Breyer  v.  State  (Tenn.  '99),  60  S. 
W.  769,  a  similar  law  was  held  to  be  unconstitutional,  not  only  because 
it  was  a  special  law  discriminating  against  one  particular  calling,  but 
because  it  was  an  unauthorized  infringement  of  the  religious  liberty  of 
the  individual.  See,  also,  to  the  same  effect,  Ex  parte  Jentzch,  112  Cal. 
468,  and  Ragio  v.  State,  2  Pickle  (Tenn.),  272  (public  bath  rooms  in  bar- 
ber shops). 

1  "  The  question  arising  under  this  act  is  quite  distinguishable  from 
the  case  where  the  legislature  of  a  State,  in  which  slavery  is  tolerated, 
passes  an  act  for  the  protection  of  the  slave  against  the  inhumanity  of  the 
master  in  not  allowing  sufficient  rest.  In  this  State,  every  man  is  a  free 
agent,  competent,  and  able  to  protect  himself,  and  no  one  is  bound  by  law 
to  labor  for  a  particular  person.  Free  agents  must  be  left  free  as  to 
themselves.  Had  the  act  under  consideration  been  confined  to  infants,  or  to 
persons  bound  by  law  to  obey  others,  then  the  question  presented  would 
have  been  very  different.  But  if  we  cannot  trust  free  agents  to  regulate 
their  own  labor,  its  time  and  quantity,  it  is  difficult  to  trust  them  to 
make  their  own  contracts.  If  the  legislature  could  prescribe  the  'days 'of 
rest  for  them,  then  it  would  seem  that  the  same  power  could  prescribe 
hours  to  work,  rest  and  eat."  Burnett,  J.,  in  Ex  parte  Newman,  9  Cal.  510. 

The  position,  which  was  assumed  by  the  California  courts  in  the  case 
of  Ex  parte  Newman,  and  afterwards  abandoned  in  later  decisions  (see 
next  note)  seems  to  have  been  completely  resumed  in  the  case  of  Ex 
parte  Jentzch,  112  Cal.  468;  in  which  the  Supreme  Court  declared  a  law 
unconstitutional,  which  prohibited  barbers  from  plying  their  trade  on 
Sunday.  The  court  in  this  case  repudiate  the  doctrine  set  forth  in  the 
text,  and  the  dissenting  opinion  of  Justice  Field  in  the  case  of  Ex  parte 
Newman,  that  the  inability  without  Sunday  laws  of  the  employe,  to 
secure  the  liberty  of  resting  from  his  labor  oa  Sunday,  was  a  justifi- 
cation of  those  laws.  Legislation  on  those  grounds  has  too  much  of  the 
pateinal  character  to  be  justifiable  under  our  constitutional  limitations, 
and  violates  the  fundamental  American  principle  of  the  equality  of  all 
men  before  the  law.  See  in  Chapter  I.  an  extensive  quotation  from  this 
decision. 

A  similar  position  has  been  taken  in  the  case  of  Eden  v.  People, 

§    68 


218       STATE    REGULATION    OF    MORALITY    AND    RELIGION. 

apprentice  is  no  more  bound  to  obey  the  behests  of  others, 
and  to  work  at  their  command,  than  the  free  laborer,  clerk, 
and  even  the  employer  himself,  under  the  irresistible  force 
of  competition,  in  the  struggle  for  existence  and  the  accumu- 
lation of  wealth.  "  It  is  no  answer  to  the  requirements  of 
the  statute  that  mankind  will  seek  cessation  from  labor  by  the 
natural  influences  of  self-preservation.  The  position  assumes 
that  all  men  are  independent,  and  at  liberty  to  work  when- 
ever they  choose.  Whether  this  be  true  or  not  in  theory,  it  is 
false  in  fact ;  it  is  contradicted  by  every  day's  experience. 
The  relation  of  superior  and  subordinate,  master  and  servant, 
principal  and  clerk,  always  has  and  always  will  exist. 
Labor  is  in  a  great  degree  dependent  on  capital,  and  unless 

161  111.  296.  In  Illinois,  the  Supreme  Court  has  taken  a  decided  stand 
against  the  constitutionality  of  all  laws,  which  interfere  with  the  in- 
dividual's liberty  of  contract,  even  denying  the  constitutionality  of  a 
law  which  prohibited  women  from  working  in  factories  and  workshops 
for  more  than  forty-eight  hours  per  week.  In  Eden  v.  People,  supra,  the 
court  say:  "If  the  legislature  has  no  power  to  prohibit  by  law  a 
woman  from  being  employed  in  a  factory  or  workshop  more  than  eight 
hours  in  any  one  day,  or  forty-eight  hours  in  a  week,  upon  what  principle, 
it  may  be  asked,  has  the  legislature  the  right  to  prohibit  a  barber  from 
laboring  and  receiving  the  fruits  of  his  labor  during  any  number  of 
hours  he  may  desire  to  work  during  the  week?  Moreover,  if  the  mer- 
chant, the  grocer,  the  butcher  and  druggist,  and  other  trades  and  callings 
are  allowed  to  open  their  places  of  business  and  carry  on  their  respec- 
tive avocations  during  seven  days  of  the  week,  upon  what  principle 
can  it  be  held  that  a  person  who  may  be  engaged  in  the  business  of 
barbering  may  not  do  the  same  thing?  *  *  *  "  As  has  been  hereto- 
fore seen,  as  a  general  rule  a  police  regulation  has  reference  to  the 
health,  comfort,  safety  and  welfare  of  society.  How,  it  may  be  asked, 
is  the  health,  comfort,  safety  or  welfare  of  society  to  be  injuriously 
affected  by  the  keeping  open  a  barber  shop  on  Sunday?  It  is  a  matter 
of  common  observation  that  the  barber  business,  as  carried  on  in  this 
State,  is  both  quiet  and  orderly.  Indeed,  it  is  shown  by  the  evidence 
incorporated  in  the  record  that  the  barber  business,  as  conducted,  is 
quiet  and  orderly,  much  more  so  than  many  other  departments  of  busi- 
ness. In  view  of  the  nature  of  the  business,  and  the  manner  in  which 
it  is  carried  on,  it  is  difficult  to  perceive  how  the  rights  of  any  person 
can  be  affected,  or  how  the  comfort  or  welfare  of  society  can  be 
disturbed." 

§    68 


SUNDAY   LAWS.  219 

the  exercise  of  power  which  capital  affords  is  restrained, 
those  who  are  obliged  to  labor  will  not  possess  the  freedom 
for  rest  which  they  would  otherwise  exercise.  Necessities 
for  food  and  raiment  are  imperious,  and  exactions  of 
avarice  are  not  easily  satisfied.  It  is  idle  to  talk  of  a 
man's  freedom  to  rest,  when  his  wife  and  children  are  look- 
ing to  his  daily  labor  for  their  daily  support.  The  law 
steps  in  to  restrain  the  power  of  capital.  Its  object  is  not 
to  protect  those  who  can  rest  at  their  pleasure,  but  to  afford 
rest  to  those  who  need  it,  and  who,  from  the  conditions  of 
society,  could  not  otherwise  obtain  it.  *  *  *  The 
authority  for  the  enactment,  I  find  in  the  great  object  of 
all  governments,  which  is  protection.  Labor  is  necessarily 
imposed  by  the  condition  of  our  race,  and  to  protect  labor 
is  the  highest  office  of  our  laws."  1  For  various  reasons, 
laws  have  been  generally  sustained,  which  compel  the  clos- 
ing of  the  stores  of  business.2  If  the  reasoning  here  pre- 

1  Dissenting  opinion  of  Judge  Field  in  Ex  parte  Newman,  9  Gal.  502,  518. 
The  opinion  of  Judge  Field  although  rejected  by  the  majority  of  the  court 
in  Ex  parte  Newman,  was  after  a  change  in  the  personnel  of  the  court 
adopted  as  the  rule  In  California  in  Ex  parte  Andrews,  18  Cal.  678,  and 
was  affirmed  in  many  other  later  cases,  the  last  being  Ex  parte  Burke,  59 
Cal.  6  (43  Am.  Rep.  231) ;  Ex  parte  Roser,  60  Cal.  177.  But  see  in  ap- 
proval of  Ex  parte  Newman,  Ex  parte  Jentzch,  112  Cal.  468,  cited  fully 
in  a  preceding  note. 

2  Vogelsang  v.  State,  9  Ind.  112;  Shover  v.  State,  10  Ark.  259;  Warne 
v.  Smith,  8  Conn.  14;  Lindenmuller  v.  People,  33  Barb.  549;  Story  v.  El- 
liott, 8  Cow.  27;  Johnston  v.  Com.,  10  Harris,  102;  Bloom  v.  Richards,  2 
Ohio,  387;  City  Council  ».  Benjamin,  2  Strobh.  529;  State  ex  rel.  Walker 
v.  Judge,  39  La.  Ann.  132;  State  v.  Fernandez,  39  La.  Ann.  638;  Swann 
v.  Swann,  21  Fed.  Rep.  299;  Commonwealth  v.  Starr,  144  Mass.  359  (H 
N.  E.  533,  note);  Friedeborn  v.  Commonwealth,  113  Pa.  St.  242;  Scales 
v.  State,  47  Ark.  476;  Judeflnd  ».  State.  78  Md.  510;  Specht  v.  Cora.,  8  Pa. 
St.  312.  In  the  last  case,  the  court  expresses  itself  thus :  "  It  intermed- 
dles not  with  the  natural  and  indefeasible  right  of  all  men  to  worship 
Almighty  God  according  to  the  dictates  of  their  own  consciences;  it  com- 
pels none  to  attend,  erect  or  support  any  place  of  worship,  or  to  main- 
tain any  ministry  against  his  consent ;  it  pretends  not  to  control  or  to 
interfere  with  the  rights  of  conscience,  and  it  establishes  no  preference 
for  any  religious  establishment  or  mode  of  worship.  It  treats  no  relig- 

§  68 


220      STATE    REGULATION    OF   MORALITY    AND    RELIGION. 

sented  be  correct,  and  the  premises  into  which  it  has  been 
formulated  be  impregnable,  the  following  conclusion  is  in- 
evitable, viz. :  that  no  Sunday  law  is  constitutional  which 
does  more  than  prohibit  those  acts,  which  are  noisy  and  are 
therefore  calculated  to  disturb  the  quiet  and  rest  of  Sunday 
worshipers,  or  which  in  their  commission  demand  or  are 
likely  to  demand,  the  services  of  others,  who  cannot  refuse 
to  serve,  on  account  of  the  common  interdependence  of 


ions  doctrine  as  paramount  in  the  State ;  it  enforces  no  unwilling  attend, 
ance  upon  the  celebration  of  divine  worship.  It  says  not  to  the  Jew  or 
Sabbatarian, '  You  shall  desecrate  the  day,  you  esteem  as  holy,  and  keep 
sacred  to  religion  that  we  deem  to  be  so!  It  enters  upon  no  discussion 
of  the  rival  claims  of  the  first  or  seventh  days  of  the  week,  nor  pretends 
to  bind  upon  the  conscience  of  any  man  any  conclusion  upon  a  subject 
which  each  must  decide  for  himself.  It  intrudes  not  into  the  domestic 
circle  to  dictate  when,  where,  or  to  what  God  its  inmates  shall  address 
their  orisons;  nor  does  it  presume  to  enter  the  synagogue  of  the  Israel- 
ite, or  the  church  of  the  seventh- day  Christian  to  command  or  even  per- 
suade their  attendance  in  the  temples  of  those  who  especially  approach 
the  altar  on  Sunday.  It  does  not  in  the  slightest  degree  infringe  upon  the 
Sabbath  of  any  sect,  or  curtail  their  freedom  of  worship.  It  detracts  not 
one  hour  from  any  period  of  time  they  may  feel  bound  to  devote 
to  this  object,  nor  does  it  add  a  moment  beyond  what  they  may 
choose  to  employ.  Its  sole  mission  is  to  inculcate  a  temporary  weekly 
cessation  from  labor,  but  it  adds  not  to  this  requirement  any  obliga- 
tion." See,  also,  Searcy  v.  State  (Tex.  Cr.  App.  '99),  51  S.  W.  1119. 
In  State  v.  Southern  Ry.  Co.,  119  N.  C.  814,  a  State  law  was  upheld, 
which  prohibited  with  certain  exceptions,  the  running  of  railroad 
trains  on  Sunday,  even  though  the  law  was  applied  to  trains  carrying 
freight  across  State  lines.  To  the  same  effect,  see  Hennington  v.  State, 
90  Ga.  396;  State  v.  Railroad  Company,  24  W.  Va.783.  See  contra  as  to 
through  or  interstate  freight,  Norfolk  &  Western  Ry.  Co.  v.  Common- 
wealth, 88  Va.  95.  On  the  general  proposition  of  the  constitutionality 
of  laws,  prohibiting  labor  on  Sunday,  see  Ex  parte  Marx,  86  Va.  40; 
Ex  parte  Sundstrom,  25  Tex.  App.  133;  Johnson  v.  People  (Colo.  App.), 
40  P.  576;  Quinlan  v.  Conlin,  34  N.  Y.  S.  952;  13  Misc.  568.  In  State  ». 
Gelpi,  48  La.  Ann.  520,  a  law  was  upheld,  which  required  private  clubs, 
in  which  liquor  is  sola  to  members  exclusively,  to  be  closed  on  Sunday. 
So,  also,  a  State  tax  on  the  sale  of  Sunday  issues  of  newspapers,  whether 
published  within  or  without  the  State,  was  held  to  be  constitutional. 
Preston  v.  Finley,  72  Fed.  850;  Thompson  v.  State,  17  Tex.  App.  253; 
Baldwin  v.  State,  21  Tex.  App.  591. 

§    68 


SUNDAY   LAWS.  221 

mankind.  The  doing  of  any  act,  which  is  noiseless  and 
does  not  require  the  service  of  others,  cannot  be  prohibited. 

It  is  not  maintained  that  this  limitation  upon  the  power  of 
the  State  to  regulate  the  observance  of  Sunday,  is  recog- 
nized and  indorsed  by  the  decisions  of  our  courts.  On  the 
contrary,  there  are  police  regulations  in  the  different  States, 
which  are  sustained  in  violation  of  this  rule  of  limitation. 
The  laws  which  prohibit  quiet  and  orderly  amusements  can- 
not be  sustained  under  the  rule,  and  so  also  those  laws, 
which  make  void  the  commercial  paper  and  deeds  which 
are  executed  on  Sunday.  Other  instances  of  existing  legis- 
lation, contradictory  of  this  rule  of  limitation,  may  be  cited, 
but  it  is  not  necessary.  But  although  not  generally  sup- 
ported by  the  authorities,  it  is  believed  to  be  the  correct  rule. 

The  same  reasons,  which  are  here  advanced,  would  like- 
wise support  and  justify  legislation,  designed  to  protect 
the  Jew  in  his  religious  observance  of  Saturday,  and  the 
Mohammedan  in  his  enjoyment  of  Friday.  But  if  the  rule 
were  carried  to  the  extreme,  of  giving  equal  protection  to 
the  enjoyment  of  the  religious  days  of  every  sect,  the  business 
prosperity  of  the  country  would  be  seriously  impaired. 
Although  the  Jew  and  the  Mohamedan  have  the  same  right 

"  O 

to  the  quiet  and  undisturbed  enjoyment  of  his  holy  day, 
the  public  welfare,  which  likewise  is  the  main  spring  to  the 
Sunday  laws,  requires  that  his  enjoyment  of  his  religion 
should  sustain  the  burden  and  annoyance  occasioned  by  the 
general  prosecution  of  trades  and  occupations  on  their  holy 
days.1  The  selection  of  Sunday,  as  the  day  of  rest  to  be 
observed  by  all,  is  not  justified  by  its  religious  character, 
although  its  religious  character,  in  the  eyes  of  the  masses 

1  In  Charleston,  S.  C.,  it  is  said  that  an  ordinance  requires  all  vehicles 
on  Sunday  to  pass  the  Jewish  synagogues  in  a  slow  walk,  in  order  to  re- 
duce disturbance  of  the  worship  to  a  minimum.  The  New  York  consti- 
tution, Art.  I.,  §  3,  and  the  Penal  Code,  §  271,  prohibit  the  service  on 
Hebrews  of  any  process  which  is  made  returnable  on  Saturday.  Martin 
v.  Goldstein,  39  N.  Y.  S.  254. 

§    68 


222      STATE    REGULATION   OF   MORALITY    AND    RELIGION. 

of  this  country,  suggests  the  reason  of  its  selection  in 
preference  to  some  other  day.  The  interference  of  the  State 
is,  after  all,  for  the  purpose  of  promoting  the  public  wel- 
fare, for  the  purpose  of  securing  to  society  the  benefits 
arising  from  a  general  periodical  cessation  from  labor ;  and 
that  object  can  be  best  attained  by  setting  apart  as  a  legal 
day  of  rest,  that  day  which  is  looked  upon  as  a  holy  day  by 
the  vast  majority  of  our  people.  In  some  of  our  States, 
there  are  statutory  exceptions  in  favor  of  those  who  con- 
scientiously observe  some  other  day  of  the  week  as  a  holy 
day,  and  abstain  from  labor  on  that  day ;  and  in  Ohio,  it 
has  been  held  that  a  statute  which  did  not  contain  such  an 
exception,  was  for  that  reason  unconstitutional.1  But  in 
other  States,  it  is  held  that  the  Sunday  law  in  its  applica- 
tion to  the  orthodox  Jew,  was  not  in  violation  of  the  article 
in  the  State  constitution,  which  declares  that  no  person  shall 
"  upon  any  pretense  whatever  be  hurt,  molested,  or  re- 
strained in  his  religious  sentiments  or  persuasions."  2  The 
restraint  upon  the  right  to  engage  in  lawful  employment  and 
to  do  otherwise  lawful  acts,  is  reasonable,  because  necessary 
to  the  successful  maintenance  of  a  general  day  of  rest.3  • 

1  Cincinnati  v.  Rice,  15  Ohio,  225;  Canton  0.  Nist,  9  Ohio  St.  439.    But 
one  must  observe  the  seventh  day  as  a  religious  day  in  order  that  he  may 
work  on  Sunday.    Liber  man  v.  State,  26  Neb.  464.      But  in  the  absence 
of  statute,  providing  otherwise,  the  conscientious  observance  of  the 
seventh  day  does  not  excuse  the  observance  of  Sunday.    Parker  v.  State, 
16  Lea  (Tenn.),  476. 

2  Frolickstein  v.  Mobile,  40  Ala.  725. 

8  "  The  legislature  obviously  regarded  it  as  promotive  of  the  mental, 
moral  and  physical  well-being  of  men,  that  they  should  rest  from  their 
labors  at  stated  intervals;  and  in  this  all  experience  shows  they  were 
right.  If  then,  rest  is  to  be  enjoined  as  a  matter  of  public  policy  at 
stated  intervals,  It  is  obvious  that  public  convenience  would  be  much 
promoted  by  the  community  generally  resting  on  the  same  day,  for  other- 
wise each  individual  would  be  much  annoyed  and  hindered  in  finding 
that  those  with  whom  he  had  business  to  transact,  were  resting  on  the 
day  on  which  he  was  working.  The  legislature,  holding  these  views  in 
selecting  the  particular  day  of  rest,  doubtless  selected  Sunday,  because  it 
was  deemed  a  proper  day  of  rest  by  a  majority  of  our  people  who  thought 
§  68 


SUNDAY   LAWS.  223 

While  it  is  claimed  that  the  State  cannot  go  beyond  the 
limitations  that  have  been  presented,  in  enacting  laws  for 
the  observance  of  Sunday  as  a  day  of  rest,  it  rests  with  the 
discretion  of  the  legislature  how  far  the  enactment  should 
extend  within  these  limitations,  and  the  scope  of  the  legis- 
lation has  varied  with  the  public  policy  in  each  State.  We 
have  already  noticed  exemptions  from  the  operation  of  the 
Sunday  laws  in  favor  of  the  Jew.  In  some  of  the  States 
only  a  person's  ordinary  calling  is  intended  to  be  sup- 
pressed ; 1  and  there  is  an  universal  exception  in  favor  of 
works  of  charity  and  necessity.  But  what  constitutes 
charity  and  necessity  is  not  viewed  in  the  same  light  in 
every  State.  It  is  a  common  rule  that  traveling  on  Sun- 
day, except  in  cases  of  charity  or  necessity,  is  unlawful, 
and  any  one  injured  while  so  doing  cannot  recover  dam- 
ages.2 But  whether  a  certain  act  is  looked  upon  as  a  ne- 

it  a  religious  duty  to  rest  on  that  day ;  and  in  selecting  this  day  for  these 
reasons,  the  legislature  acted  wisely.  The  law  requires  that  the  day  be 
observed  as  a  day  of  rest,  not  because  it  is  a  religious  duty,  but  because 
such  observance  promotes  the  physical,  mental  and  moral  well-being  of 
the  community,  and  Sunday  is  selected  as  the  day  of  rest,  because  if  any 
other  day  had  been  named,  it  would  have  imposed  unnecessarily  onerous 
obligations  on  the  community,  inasmuch  as  many  of  them  would  have 
rested  on  Sunday  as  a  religious  duty,  and  the  requirement  of  another 
day  to  be  observed  as  a  day  of  rest,  would  have  resulted  in  two  days 
being  observed  instead  of  one,  and  thus  time  would  have  been  uselessly 
wasted.  This  I  conceive  is  the  main  object  of  our  law;  but  it  is  not  its 
only  object."  State  v.  Bait.  &  O.  R.  R.  Co.,  15  W.  Va.  362  (36  Am. 
Rep.  803,  814).  An  exemption  of  this  kind  was  declared  unconstitu- 
tional in  Louisiana,  because  it  discriminated  between  religious  sects. 
Shreveport  v.  Levy,  26  La.  Ann.  67.  But  it  was  held  valid  in  Indiana. 
Johns  ».  State,  78  Ind.  332.  In  Simond's  Exrs.  v.  Gratz,  2  Pen.  &  Watts, 
412,  it  was  held  that  it  was  no  ground  for  a  continuance  that  a  Jew  had 
conscientious  scruples  against  attendance  at  the  trial  of  his  cause  on 
Saturday. 

1  Mills  v.  Williams,  16  S.  C.  594,  597;  approving  Hellams  v.  Aber- 
crombie,  15  S.  C.  110,  113;  Bennett  v.  Brooks,  9  Allen,  118. 

2  Hinckley  v.  Penobscot,  42  Me.  89;  Cratty  o.  Bangor,  57  Me.  423  (2 
Am.  Rep.  56);  Johnson  v.  Irasburg,  47  Vt.  28  (19  Am.  Rep.  Ill) ;  Bos- 
worth  v.  Swansey,  10  Met.  364;  Connolly  v.  Boston,  117  Mass.  64  (19 

§  68 


224      STATE   REGULATION   OF  MORALITY   AND   RELIGION. 

cessity,  will  depend  largely  upon  the  condition  of  public 
sentiment,  its  mere  fitness  and  propriety  being  the  only 
standard  of  right  and  wrong.1  We  must  therefore  ex- 
pect to  find  contradictory  conclusions  upon  this  question  of 
necessity.  In  Pennsylvania  it  is  not  considered  a  work  of 
necessity  for  a  barber  to  shave  his  customers  on  Sunday,2 
while  in  Indiana  it  is  deemed  to  be  a  question  of  fact,  to 
be  determined  by  a  jury.8  In  some  States  the  running  of 
railroad  trains  and  the  operation  of  street  railroads  are 
held  to  be  necessary.4  In  other  States  both  have  been  held 
to  be  violations  of  the  Sunday  laws.5  The  transportation 
of  cattle  received  on  Sunday,6  feeding  stock  and  gathering 
the  necessary  feed,6  the  gathering  of  grain  which  may  be 
injured  if  left  in  the  field  until  Monday,8  the  expenditure 
of  the  labor  necessary  to  prevent  waste  of  sap  in  making 
maple  sugar,9  have  been  held  to  be  lawful  because  they 

Am.  Rep.  396)  ;  Davis  v.  Somerville,  128  Mass.  594;  Buck  v.  Biddeford, 
82  Me.  433 ;  Dougan  v.  State,  125  Ind.  130 ;  Dorsey  v.  State,  125  Ind.  600. 
Traveling  for  pleasure  in  street  cars  now  allowable  in  Connecticut. 
Horton  v.  Norwalk  Tramway  Co.,  66  Conn.  272. 

1  See  Davis  v.  Somerville,  128  Mass.  594;  McClary  v.  Lowell,  44  Vt. 
116  (8  Am.  Rep.  366);  Logan  v.  Matthews,  6  Pa.  St.  417;  Johnson  o. 
People,  31  111.  469. 

2  Com.  o.  Jacobus,  1  Leg.  Gaz.  Rep.  (Pa.)  491;  State  v.  Schuler,  23 
Wkly.  Law  Bui.  450;  Commonwealth  v.  Waldman,  140  Pa.  St.  89;  State 
v.  Wellott,  54  Mo.  App.  310. 

3  Ungericht  v.  State,  119  Ind.  379. 

*  Com.  v.  Louisville  &  Nashville  R.  R.  Co.,  80  Ky.  291;  Louisville  & 
Nash.  Ry.  Co.  v.  Commonwealth  (Ky.),  30  S.  W.  878;  Augusta  &  S.  R.  R. 
Co.  v.  Renz,  55  Ga.  126;  Sullivan  v.  Maine  Central  Ry.  Co.,  82  Me.  196. 
See  Jackson  v.  State,  88  Ga.  787. 

5  Sparhawk  v.  Union  Passenger  R.  Co.,  54  Pa.  St.  401;  Com.  v.  Jean- 
dell,  2  Grant  Gas.  506;  McNeely  v.  State,  94  Ga.  592. 

6  Phil.  &  B.  R.  R.  Co.  v.  Lehman,  56  Md.  209. 

7  Edgerton  v.  State,  69  Ind.  588. 

8  Turner  v.  State,  67  Ind.  595;  Johnson  v.  People,  42  111.  App.  694. 

9  Whitcomb  v.  Oilman,  35  Vt.  497.    See  Commonwealth  v.  Funk,  9  Pa. 
Co.  Ct.  Rep.  277,  as  to  when  it  is  necessary  to  work  on  Sunday  to  pre- 
vent a  water  overflow  in  oil-wells.    To  the  same  effect  see  Com.  v. 
Gillespie,  146  Pa.  St.  546. 

§    68 


,        SUNDAY    LAWS.  225 

were  works  of  necessity.  In  other  States  similar  acts  were 
held  to  be  unlawful,  on  the  ground  of  not  being  deemed 
necessary.1 

Later  decisions  are  quite  numerous,  in  which  the  question 
is  asked  and  answered,  what  employments  are  permitted,  as 
being  works  of  necessity  or  charity,  to  be  pursued  on  Sun- 
day. Some  of  these  cases  are  given  in  the  note  below.2 

1  State  v.  GofE,  20  Ark.  289;  Jones  v.  Andrews,  10  Allen,  18. 

8  Thus,  a  druggist  is  not  allowed  to  sell  soda  water  and  other  beverages. 
Splane  v.  Commonwealth  (Pa.),  12  A.  431;  Quinlan  v.  Conlin,  34  N.  Y.  S. 
952;  13  Misc.  568.  The  continued  operation  on  Sunday  of  an  ice  factory 
was  held  to  be  a  work  of  necessity,  as  the  stopping  of  the  factory  on 
Sunday  would  mean  a  loss  of  24  to  30  hours  on  Monday  in  getting  the 
factory  in  working  order  again.  Hennersdorf  v.  State,  25  Tex.  App.  597. 
The  same  ruling  would  apply  to  glass  and  other  factories,  where  so  much 
time  is  required  in  attaining  the  degree  of  temperature,  high  or  low, 
which  is  needed  in  operating  the  factory.  But  not  to  the  repair  of  a 
mill.  Hamilton  v.  Austin,  62  N.  H.  575.  It  is  a  work  of  necessity  to 
shoe  a  stage  horse.  Nelson  •;;.  State,  25  Tex.  App.  599.  It  is  not  a  work 
of  necessity  to  publish  or  sell  a  newspaper  on  Sunday.  Handy  v.  St.  Paul 
Globe  Pub.  Co.,  41  Minn.  188;  Commonwealth  v.  Matthews,  152  Pa.  St. 
166;  Com.  v.  Suppert,  152  Pa.  St.  169.  So,  likewise,  the  sale  of  cigars 
and  tobacco.  Commonwealth  v,  Marzynski,  149  Mass.  68;  State  v. 
Ghmer,  34  Mo.  App.  115.  It  is  a  work  of  charity  to  subscribe  on  Sunday 
a  sum  of  money  for  the  liquidation  of  a  church  debt.  Bryan  v.  Watson,  127 
Ind.  42.  So,  also,  telegraphic  messages  to  members  of  one  family,  com- 
municating important  information,  are  works  of  necessity.  Burnett  v. 
West,  Un.  Tel.  Co.,  39  Mo.  App.  599;  West  Un.  Tel.  Co.  v.  Wilson,  93 
Ala.  32;  West.  Un.  Tel.  Co.  v.  Griffin,  1  Ind.  App.  46. 

15  §    68 


CHAPTER    VIII. 

FREEDOM  OF  SPEECH  AND  LIBERTY  OF  THE  PRESS. 

§  81.  Police  supervision  prohibited  by  the  constitu- 
tions. —  A  popular  government,  and  hence  freedom  from 
tyranny,  is  only  possible  when  the  people  enjoy  the  free- 
dom of  speech,  and  the  liberty  of  the  press.  If  the  indi- 
vidual is  not  free  to  publish  by  word  of  mouth  or  writing, 
or  through  the  press,  the  complaints  of  encroachments 
of  the  government  or  of  individuals  upon  his  rights  and 
liberties,  he  is  deprived  of  his  liberty,  and  he  is  not  a  free- 
man. Even  if  there  were  no  special  constitutional  restric- 
tions upon  the  governmental  control  of  these  rights,  the 
State  regulation  would  be  unconstitutional,  which  denied 
the  right  of  the  individual  to  publish  what  he  pleases,  or 
which  prohibited  the  publication  of  newspapers  or  other 
periodicals  or  books,  on  the  general  ground  that  they  would 
involve  the  deprivation  of  liberty  and  the  right  to  pursue 
happiness. 

But  the  liberty  of  speech  and  of  the  press  is  not  to  be 
confounded  with  a  licentiousness  and  a  reckless  disregard 
of  the  rights  of  others.  No  one  can  claim  the  right  to 
slander  or  libel  another,  and  the  constitutions  do  not  permit 
or  sanction  such  wrongful  acts.  Liberty  of  speech  and  of 
the  press,  therefore,  means  the  right  to  speak  or  publish 
what  one  pleases,  the  utterance  of  which  does  not  work  an 
injury  to  any  one,  by  being  false.  The  common  law  pro- 
vided for  the  due  punishment  of  such  trespasses  upon  the 
right  to  reputation,  and  ordinarily  these  remedies,  which 
prevail  generally,  afford  sufficient  protection  to  the  individ- 
ual and  the  public.  But  sometimes,  and  oftener  in  these 
later  days,  when  the  press  has  acquired  extraordinary 
(220)  §  81 


POLICE  SUPERVISION  PROHIBITED  BY  CONSTITUTION.       227 

power,  these  remedies  prove  ineffectual.  The  tendency  of 
the  press,  at  least  of  this  country,  is  to  publish  sensational, 
and  oftener  false,  accounts  of  individual  wrongs  and  im- 
moralities, to  such  an  extent  that  newspapers  too  often  fall 
properly  within  the  definition  of  obscene  literature.  If 
possible,  the  publication  of  such  matter  should  be  sup- 
pressed, or  at  least  published  in  such  a  way,  as  to  do  little 
or  no  harm  to  the  morals  of  the  community.1 

Then  again,  we  have  newspapers,  in  whose  columns  we 
find  arguments  and  appeals  to  passion,  designed  to  incite 
the  individual  who  may  be  influenced  thereby  to  the  com- 
mission of  crimes,  appeals  to  "  dynamiters,"  socialists  and 
nihilists,  and  all  other  classes  of  discontents,  who  believe 
the  world  has  been  fashioned  after  a  wrong  principle,  and 
needs  to  be  remodeled.  Of  course,  those  who  do  these 
reprehensible  things  may  be  punished  for  each  overt  act. 

But  the  only  effective  remedy  would  be  the  establishment 
of  a  censorship  over  the  press,  by  which  such  publication 
may  be  prevented,  instead  of  being  punished  after  the  evil 
has  been  done.  Under  the  general  constitutional  provis- 
ions, this  supervision  of  the  press  would  be  permissible, 
and  would  not  infringe  the  liberty  of  the  individual.  It 
would  be  only  such  a  restraint  upon  the  liberty  of  speech 
and  of  the  press,  as  would  promote  public  welfare,  and 
would  be  sanctioned  as  an  exercise  of  the  police  power  of 
the  government.  But  such  a  control  of  the  press  would 
be  very  liable  to  abuse,  and  through  it  the  absolute  sup- 
pression of  the  press  would  be  rendered  possible,  if  the 
government  should  fall  into  the  hands  of  designing  men  ; 

1  In  Kansas  and  Missouri  the  sale  of  newspapers,  which  are  devoted 
largely  to  the  publication  of  scandals,  immoral  occurrences,  etc.,  is  pro- 
hibited; and  the  constitutionality  of  the  law  has  been  sustained.  In 
re  Banks,  56  Kans.  242;  State  v.  Van  Wye,  136  Mo.  227.  So,  also,  has  a 
law  been  upheld  in  Texas,  which  Imposed  a  tax  upon  the  Sunday  issues 
of  newspapers,  whether  they  are  published  within  or  without  the  State. 
Preston  v.  Finley,  72  Fed.  850;  Thompson  o.  State,  17  Tex.  App.  253; 
Baldwins.  State,  21  Tex.  App.  591. 

§    81 


228      FREEDOM  OF  SPEECH  AND  LIBERTY  OF  THE  PRESS. 

and  at  all  events  it  would  be  an  effective  engine  of  oppres- 
sion. 

Profiting  by  their  experience  in  the  colonial  days,  when 
the  English  government  exercised  a  control  over  the  press, 
sometimes  to  the  extent  of  prohibiting  the  publication  of 
the  paper,  and  always  to  the  extent  of  suppressing  all  pro- 
tests and  arguments  against  England's  oppressive  acts  ;  our 
forefathers  provided  by  constitutional  provisions,  both  in 
the  Federal  and  in  the  State  constitutions,  that  the  liberty 
of  speech  and  of  the  press  shall  not  be  abridged  by  any 
law.  The  provision  varies  in  phraseology  in  the  different 
constitutions,  but  the  limitation  upon  the  power  of  govern- 
ment is  the  same  in  all  cases.  While  this  constitutional  pro- 
vision prohibits  all  control  or  supervision  of  the  press  in  the 
way  of  a  license  or  censorship,  the  slanderer  or  libeler  may 
still  be  punished.  He  suffers  the  penalty  inflicted  by  the  law 
for  the  abuse  of  his  privilege.  The  opinion  of  Chief  Justice 
Parker  of  Massachusetts  has  been  frequently  quoted,  and 
generally  recognized  as  presenting  the  correct  construction 
of  this  constitutional  provision.  In  Commonwealth  v. 
Blanding,1  he  says  :  "  Nor  does  our  constitution  or  declara- 
tion of  rights  abrogate  the  common  law  in  this  respect,  as 
some  have  insisted.  The  sixteenth  article  declares  that '  lib- 
erty of  the  press  is  essential  to  the  security  of  freedom  in  a 
State ;  it  ought  not,  therefore,  to  be  restrained  in  this  Com- 
monwealth. The  liberty  of  the  press,  not  its  licentious- 
ness: this  is  the  construction  which  a  just  regard  to  the 
other  parts  of  that  instrument,  and  to  the  wisdom  of  those 
who  founded  it,  requires.  In  the  eleventh  article,  it  is  de- 
clared that  '  every  subject  of  the  Commonwealth  ought  to 
find  a  certain  remedy,  by  having  recourse  to  the  laws,  for 
injuries  or  wrongs  which  he  may  receive  in  his  person, 
property,  or  character;'  and  thus  the  general  declaration  in 

1  3  Pick.  304,  313.  See,  also,  Story  on  Constitution,  §  1889;  2  Kent, 
17;  Wharton's  State  Trials,  323;  Respublica  v.  Dennie,  4  Yeates,  207 
(2  Am.  Dec.  402). 

§    81 


POLICE  SUPERVISION  PROHIBITED  BY  CONSTITUTION.       229 

the  sixteenth  article  is  qualified.  Besides,  it  is  well  under- 
stood and  received  as  a  commentary  on  this  provision  for 
the  liberty  of  the  press,  that  it  was  intended  to  prevent  all 
such  previous  restraints  upon  publications  as  had  been  prac- 
ticed by  other  governments,  and  in  early  times  here  to  stifle 
the  efforts  of  patriots  towards  enlightening  their  fellow- 
subjects  upon  their  rights  and  the  duties  of  rulers.  The 
liberty  of  the  press  was  to  be  unrestrained,  but  he  who  used 
it  was  to  be  responsible  in  case  of  its  abuse;  like  the  right 
to  keep  firearms,  which  does  not  protect  him  who  uses 
them  for  annoyance  or  destruction."  l  But  it  has  been 
held  that  the  constitutional  prohibition  of  the  censorship  of 
the  press  does  not  inhibit  the  imposition  of  a  license  tax 
upon  newspapers.2 

But  while  all  previous  restraints  are  forbidden  by  this 
provision  of  the  constitution,  the  permissible  restraints 
upon  the  freedom  of  speech  and  of  the  press  are  not  con- 
fined to  responsibility  for  private  injury.  All  obscene  or 
blasphemous  publications  may  be  prohibited,  as  tending  to 
do  harm  to  the  public  morals.  So,  likewise,  may  the  pub- 
lication of  all  defamatory  statements,  whether  true  or  false, 
concerning  private  individuals,  in  whom  the  public  have  no 
concern,  be  prohibited,  as  was  the  case  at  common  law; 
and  is  now  in  some  of  the  States  ;  on  the  ground  that  such 
publications  do  no  good,  and  excite  breaches  of  the  peace. 
In  neither  case  is  there  any  private  injury  inflicted,  but  the 
harm  to  the  public  welfare  is  the  justification  of  the  prohi- 
bition. 

"  The  constitutional  liberty  of  speech  and  of  the  press., 
as  we  understand  it,  implies  a  right  to  freely  utter  and 

1  A  by-law  of  the  Associated  Press  was  sustained  and  enforced,  which 
prohibited  its  members  from  receiving  and  publishing  the  regular  news 
dispatches  of  any  other  news  association  which  covered  the  same  terri- 
tory, and  was  organized  for  the  purpose  of  supplying  newspapers  with 
telegraphic  news.  Mathews  v.  Associated  Press,  61  Hun,  199;  Bleistein 
v.  Associated  Press,  Id. 

8  City  of  Norfolk  v.  Norfolk  Landmark  Co.,  95  Va.  564. 

§    81 


230      FREEDOM  OF  SPEECH  AND  LIBERTY  OF  THE  PRESS. 

publish  whatever  the  citizen  may  please,  and  to  be  protected 
against  any  responsibility  for  so  doing,  except  so  far  as 
such  publications,  from  their  blasphemy,  obscenity,  or  scan- 
dalous character,  may  be  a  public  offense,  or  as,  by  their 
falsehood  and  malice,  they  may  injuriously  affect  the  stand- 
ing, reputation,  or  pecuniary  interests  of  individuals."  l 

So,  also,  is  it  not  to  be  inferred  from  the  prohibition  of  a 
censorship  of  the  press,  that  the  press  can,  without  liability 
for  its  wrongful  use,  make  use  of  the  constitutional  privilege 
for  the  purpose  of  inciting  the  people  to  the  commission  of 
crime  against  the  public.  The  newspapers  of  anarchists 
and  nihilists  cannot  be  subjected  to  a  censorship,  or  be 
absolutely  suppressed;  but  if  the  proprietors  should  in  their 
columns  publish  inflammatory  appeals  to  the  passion  of 
discontents,  and  urge  them  to  the  commission  of  crimes 
against  the  public  or  against  the  individual,  they  may  very 
properly  be  punished,  and  without  doubt  the  right  to  the 

1  Cooley  Const.  Lim.  521  (*422).  See  In  re  Banks,  56  Kans.  242 ;  Preston 
v.  Finley,  72  Fed.  850;  Thompson  v.  State,  17  Tex.  App.  253;  Baldwin  v. 
State,  21  Tex.  App.  591,  cited  in  preceding  note  on  page  229.  It  has  been 
held  to  be  lawful  for  State  law  to  provide  for  the  punishment  of  publish, 
ers  of  newspapers  for  publishing  false  reports  of  the  proceedings  of  a 
court.  State  v.  Faulds,  17  Mont.  140.  It  is  also  a  constitutional  Inter- 
ference with  freedom  of  speech,  for  a  law  to  prohibit  the  use  of  profane 
language  in  any  public  place.  State  v.  Warren,  113  N.  C.  683.  It  has 
likewise  been  held  to  be  lawful,  and  not  in  violation  of  the  constitutional 
guaranty  of  freedom  of  speech,  to  prohibit  creditors  from  publishing  the 
names  of  their  debtors  as  bad  debtors.  State  v.  McCabe,  135  Mo.  450.  On 
the  other  hand,  it  has  been  held  to  be  unlawful  for  a  court  to  prohibit  the 
performance  of  a  play  during  the  pendency  of  a  murder  trial,  because  the 
play  was  founded  upon  facts  which  were  Involved  in  the  criminal  case 
then  pending.  Dailey  v.  Superior  Court  of  San  Francisco,  112  Cal.  94. 
Nevertheless,  if  the  publication  of  an  item  constitutes  a  contempt  of 
court,  according  to  the  common  and  statutory  law,  the  publisher  may  be 
punished,  without  any  interference  with  the  constitutional  guaranty  of  the 
liberty  of  the  press.  State  v.  Tug  well,  19  Wash.  St.  238  (52  P.  105C). 
But  a  judicial  officer,  who  is  a  candidate  for  re-election,  cannot  object 
to  newspaper  criticisms  of  his  'judicial  acts,  as  constituting  a  case  of 
contempt  of  court.  State  v.  Circuit  Court  of  Eau  Claire  County,  97 
Wis.  1. 

§  81 


POLICE  SUPERVISION  PROHIBITED  BY  CONSTITUTION.       231 

continued  publication  may  be  forfeited  as  a  punishment  for 
the  crime. 

A  very  curious  and  interesting  question  of  constitu- 
tional law  has  been  raised  in  New  York,  involving  an 
alleged  infringement  of  the  freedom  of  speech  and  liberty 
of  the  press.  An  association  of  individuals  had  designed 
to  honor  the  memory  of  a  philanthropic  lady  by  the  erection 
in  a  public  place  of  a  statue  of  her,  when  the  members  of 
her  family  sought  to  prevent  it,  on  the  ground  that  their 
assent  to  the  project  was  necessary,  inasmuch  as  the  deced- 
ent was  not  a  public  character.  The  association  was  en- 
joined from  the  making  and  placing  on  exhibition  of  the 
statue,  notwithstanding  their  claim  that  it  was  an  infringe- 
ment of  their  constitutional  right  to  freely  speak,  write 
and  publish  their  sentiments  on  all  subjects.1 

It  has  also  been  claimed  that  police  regulations,  which 
require  a  permit  from  some  public  official,  before  it  can  be 
lawful  for  any  one  to  use  the  parks  or  other  public  places 
for  public  assemblies  and  speech-making,  are  an  infringe- 
ment of  the  constitutional  right  of  freedom  of  speech  or 
of  assembly.  But  the  courts  have  held  that  this  is  only  a 
reasonable  regulation,  and  not  the  denial  of  the  right  of 
public  assembly.2 

The  Postal  Regulations  contain  provisions  for  preventing 
the  use  of  the  mails  for  the  promotion  of  evil  and  wrong- 
doing, and  they  have  been  generally  sustained,  as  being  no 
violation  of  the  constitutional  guaranty  of  the  freedom  of 
speech  and  the  liberty  of  the  press.  One  regulation  pro- 
hibits the  transmission  of  obscene  literature  or  printed  or 
written  matter,  or  of  matter  which  is  used  in  the  dissemina- 
tion of  crime  or  immorality.3  But  it  must  be  shown  that 

1  Schuyler  v.  Curtis,  70  Hun,  598,  30  Abb.  N.  C.  376. 

1  Commonwealth  v.  Abrahams,  156  Mass.  57 ;  Davis  v.  Commonwealth 
of  Massachusetts,  167  U.  S.  43. 

3  United  States  ».  Harmon,  45  Fed.  414.  In  Ex  parte  Rapier,  143  U. 
S.  110,  it  was  held  to  be  lawful  for  the  postal  authorities  to  exclude  from 

§  81 


232      FREEDOM  OF  SPEECH  AND  LIBERTY  OF  THE  PRESS. 

the  packages,  deposited  in  the  mail,  does  contain  the  objec- 
tionable matter.  A  citizen  has  a  right  to  the  use  of  the 
mail  for  the  transmission  of  unobjectionable  matter,  and 
he  cannot  be  deprived  of  this  right  merely  on  suspicions, 
more  or  less  well-grounded,  that  he  is  using  the  mail  for  an 
unlawful  purpose.  Thus,  in  the  effort  to  suppress  the 
Louisiana  Lottery,  an  act  of  Congress  authorized  the 
Attorney-General  —  when  satisfactory  proof  was  presented 
to  him,  that  a  person,  firm  or  corporation  was  habitually 
making  use  of  the  mail  for  the  purpose  of  conducting  a 
lottery  or  other  fraudulent  scheme,  —  to  order  the  postmas- 
ter to  return  all  mail  matter  received  at  his  office,  addressed 
to  such  person,  firm  or  corporation.  It  was  held  that  the 
act  of  Congress  was  constitutional  so  far  as  it  applied  to  a 
corporation  which  was  engaged  in  the  unlawful  business, 
and  in  no  other  lawful  business.  In  such  a  case,  it  is  to  be 
presumed  that  letters  and  other  mail  matter  addressed  to 
such  a  corporation  are  intended  to  further  the  unlawful 
enterprise.  But  where  the  regulation  is  enforced  against 
a  private  individual,  in  the  case  of  sealed  packages,  there 
is  no  such  strong  conclusion  that  it  contains  objection- 
able matter,  and  the  denial  to  such  a  person  of  the  use  of 
the  mail  for  all  purposes  is  unconstitutional.  It  deprives 
him  of  the  undoubted  right  to  make  use  of  the  mail  for 
lawful  purposes,  and  is  in  violation  of  the  fourth  amend- 
ment of  the  constitution,  which  secures  him  against  unrea- 
sonable seizures  of  his  papers.1 

the  mail  newspapers  which  contained  advertisements  of  the  Louisiana 
Lottery. 

1  Hoover  o.  McChesney,  81  Fed.  472. 
§    81 


CHAPTER  IX. 

REGULATION  OF  TRADES  AND  OCCUPATIONS. 

SECTION  85.  General  propositions. 

86.  Prohibition  as  to  certain  classes. 

87.  Police  regulations  of  skilled  trades  and  learned  profes- 

sions. 

88.  Regulation  of  practice  of  learned  professions. 

89.  Regulation  of  sale  of  certain  articles  of  merchandise. 

90.  Regulations  to  prevent  fraud. 

91.  L<  gal  tender  and  regulation  of  the  currency. 

92.  Free  coinage  of  silver  and  the  legal  tender  decisions. 

93.  Legislative  restraint  of  importations — Protective  tariffs. 

94.  Liberty  of  contract,  a  constitutional  right. 

95.  Compulsory  formation  of  business  relations. 

96.  Regulation  of  prices  and  charges. 

97.  Later  cases  on  regulating  prices  and  charges  —  Regulations 

must  be  reasonable  —  What  is  a  reasonable  regulation,  a 
judicial  question. 

98.  Police  regulation  of  the  labor  contract. 

99.  Regulation  of  wages  of  workmen  —  Compulsory  insurance 

and  membership  in  benefit  societies  —  Release  from 
liability  for  injuries  to  employees. 

100.  Regulation    of  wages  of  workmen,  continued — Time  of 

payment  —  Medium  of  payment  —  Fines  and  deduc- 
tions for  imperfect  work —  Mechanics'  liens  and  exemp- 
tion of  wages. 

101.  Prohibition  of   employment  of    aliens  —  Exportation    of 

laborers  —  Importation  of  laborers  under  contract  — 
Chinese  labor  —  Employers  compelling  workmen  to  leave 
union. 

102.  Regulating  hours  of  labor. 

103.  Regulation  of  factories,  mines,  and  workshops  —  Sweat- 

shops. 

104.  Period  of  hiring  —  Breach  or  termination  of    labor  con- 

tract—  Compulsory  performance  of  labor  contract  — 
Requirement  of  notice  of  discharge  —  Employers  re- 
quired to  give  statement  of  reasons  for  discharge. 

105.  Regulation  of  business  of  insurance. 

106.  Usury  and  interest  laws. 

(233) 


234  REGULATION    OF   TRADES    AND   OCCUPATIONS. 

SECTION  107.  Prevention  of  speculation. 

108.  Prevention  of  combinations  in  restraint  of  trade. 

109.  A  combination  to  corner  the  market. 

109a.  Contracts  against  liability  for  negligence  prohibited. 

110.  Common  law  prohibition  of  combinations  in  restraint  of 

trade,  restated. 

111.  Industrial  and    corporate  trusts,  as  combinations  in  re- 

straint of  trade. 

112.  Modern  statutory  legislation  against  trade  combinations, 

virtual  monopolies,  and  contracts  in  restraint  of  trade. 

113.  Different  phases   of  the  application  of  anti-trust  stat- 

utes—  Factor's  system  —  Control  of  patents  —  Com- 
binations against  dishonest  debtors —  Agreements  to 
sell  only  to  regular  dealers  —  Combinations  of  employers 
to  resist  combinations  of  employees  —  Department 
stores. 

114.  Labor  combinaticns  —  Trades  unions  —  Strikes. 

115.  Strikes,  continued,  and  Boycotts. 

116.  Wagering  contracts  prohibited. 

117.  Option  contracts,  when  illegal. 

118.  General  prohibition  of  contracts  on  the  ground  of  public 

policy. 

119.  Licenses. 

120.  Prohibition  of  occupations  in  general. 

121.  Prohibition  of  trade  in  vice  —  Social  evil,  gambling,  horse- 

racing. 

122.  Prohibition  of  trades  for  the  prevention  of  fraud  —  Adul- 

terations of  goods  —  Harmful  or  dangerous  goods  — 
Prohibition  of  sale  of  oleomargarine. 

123.  Prohibition  of  ticket  brokerage  —  Ticket-scalping  prohib- 

ited and  punished. 

124.  Prohibition  of  sales  of  game  out  of  season. 

125.  Prohibition  of  the  liquor  trade. 

126.  Police  control  of  employments  in  respect  to  locality. 

127.  Monopolies  —  General  propositions. 

128.  Monopolies  and  exclusive  franchises  in  the  case  of  rail- 

roads, bridges,  ferries,  street  railways,  gas,  water, 
lighting,  telephone  and  telegraph  companies. 

129.  Patents  and  copyrights,  how  far  monopolies. 

130.  When    ordinary    occupations   may    be    made    exclusive 

monopolies. 

131.  National,  State  and  municipal  monopolies. 

5  85.   General  propositions. —  It  will  probably  not  be 
disputed  that  every  one  has  a  right  to  pursue,  in  a  lawful 
§  85 


GENERAL    PROPOSITIONS.  235 

manner,  any  lawful  calling  which  he  may  select.  The  State 
.can  neither  compel  him  to  pursue  any  particular  calling, 
nor  prohibit  him  from  engaging  in  any  lawful  business, 
provided  he  does  so  in  a  lawful  manner.  It  is  equally  recog- 
nized as  beyond  dispute,  that  the  State,  in  the  exercise  of 
its  police  power,  is,  as  a  general  proposition,  authorized  to 
subject  all  occupations  to  a  reasonable  regulation,  where 
such  regulation  is  required  for  the  protection  of  public  in- 
terests, or  for  the  public  welfare.  It  is  also  conceded  that 
there  is  a  limit  to  the  exercise  of  this  power,  and  that  it  is 
not  an  unlimited  arbitrary  power,  which  would  enable  the 
legislature  to  prohibit  a  business,  the  prosecution  of  which 
inflicts  no  damage  upon  others.  But  the  difficulty  is  ex- 
perienced, when  an  attempt  is  made  to  lay  down  a  general 
rule,  by  which  the  validity  of  a  particular  regulation 
may  be  tested.  No  objection  can  be  raised  to  such  a 
regulation,  unless  it  contravenes  some  constitutional  pro- 
vision. "  The  State  legislatures  have  the  power,  unless 
there  be  something  in  their  own  constitution  to  prohibit  it, 
of  entirely  abolishing  or  placing  under  restrictions  any 
trade  or  profession,  which  they  may  think  expedient."1 
And  the  courts,  in  passing  upon  the  validity  of  a  statute, 
should  hold  strongly  to  the  presumption  that  the  legislature 
had,  in  the  enactment  of  the  police  regulation  under 
inquiry,  the  sole  desire  and  intention  of  thereby  promoting 
the  public  health,  comfort  and  safety,  by  the  prohibition 
of  some  act  injurious  thereto.  If  the  statute  admits  of  two 
constructions,  one  of  which  is  a  reasonable  exercise  of 
police  power,  and  the  other  is  unreasonable,  in  that  it  pro- 
motes or  does  not  promote  the  public  interests;  the  former 
construction  should  be  adopted,  and  the  statute  sustained  as 
a  constitutional  exercise  of  the  police  power.2 

It  is  a  matter  of  great  doubt,  whether  in  any  of  the  State 
constitutions  there  is  any  special  limitation  upon  the  power 

1  Austin  v.  State,  10  Mo.  591. 

2  People  v.  Warden  of  City  Prison,  144  N.  Y.  629. 

§    85 


236  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

of  the  legislature  to  regulate  and  enjoin  the  prosecution  of 
trades  and  occupations ;  and  if  there  is  any  limitation  it  must 
be  inferred  from  the  general  clauses,  such  as  "  every  man 
has  an  inalienable  right  to  life,  liberty,  and  the  pursuit  of 
happiness,"  or  "  no  man  shall  be  deprived  of  his  life,  lib- 
erty and  property,  except  by  due  process  of  law."  No 
man's  liberty  is  safe,  if  the  legislature  can  deny  him  the 
right  to  engage  in  a  harmless  calling;  there  is  certainly  an 
interference  with  his  right  to  the  pursuit  of  happiness  in  such 
a  case;  and  such  a  prohibition  would  be  a  deprivation  of 
his  liberty  "  without  due  process  of  law."  Judge  Cooley 
says  in  this  connection:  "  What  the  legislature  ordains  and 
the  constitution  does  not  prohibit  must  be  lawful.  But  if 
the  constitution  does  no  more  than  to  provide  that  no  person 
shall  be  deprived  of  life,  liberty,  or  property,  except  by 
due  process  of  law,  it  makes  an  important  provision  on  this 
subject,  because  it  is  an  important  part  of  civil  liberty  to 
have  the  right  to  follow  all  lawful  employments."  *  If 

1  Cooley  on  Torts,  p.  277.  "  No  proposition  is  now  more  firmly  settled 
than  that  it  is  one  of  the  fundamental  rights  and  privileges  of  every 
American  citizen  to  adopt  and  follow  such  lawful  industrial  pursuits,  not 
injurious  to  the  community,  as  he  may  see  fit.  Slaughterhouse  Cases, 
16  Wall.  106;  Corfleld  v.  Coryell,  4  Wash.  C.  C.  380;  Matter  of  Jacobs, 
98  N.  Y.  98."  The  term  ( liberty,'  as  protected  by  the  constitution,  Is  not 
cramped  into  a  mere  freedom  from  physical  restraint  of  the  person  of  the 
citizen,  as  by  incarceration,  but  is  deemed  to  embrace  the  right  of  man  to 
be  free  in  the  enjoyment  of  the  faculties  with  which  he  has  been  endowed 
by  the  Creator,  subject  only  to  such  restraints  as  are  necessary  for  the 
common  welfare.  In  the  language  of  Andrews,  J.,  in  Bertholf  v.  O'Reilly 
(74  N.  Y.  615),  the  right  to  liberty  embraces  the  right  of  man  '  to  exer- 
cise bis  faculties  and  to  follow  the  lawful  avocations  for  the  support  of 
life,'  and  as  expressed  by  Earl,  J.,  in  In  re  Jacobs  (98  N.  Y.  98),  '  one 
may  be  deprived  of  his  liberty,  and  his  constitutional  right  thereto 
violated,  without  the  actual  restraint  of  his  person.  Liberty  in  its  broad 
sense,  as  understood  in  this  country,  means  the  right  not  only  of  freedom 
from  servitude,  imprisonment  or  restraint,  but  the  right  of  one  to  use  his 
faculties  in  all  lawful  ways,  to  live  and  work  where  he  will,  to  earn  his 
livelihood  in  any  lawful  calling,  and  to  pursue  any  lawful  trade  or  avoca- 
tion.' "  People  v.  Marx,  99  N.  Y.  377,  386.  "  The  evidence  in  favor  of 
the  petitioner  is  abundant  and  of  the  highest  kind  that  the  article  he  sells, 
§  85 


GENERAL   PROPOSITIONS.  237 

these  general  constitutional  provisions  contain  the  only 
limitations  upon  the  legislative  power  to  regulate  em- 
ployments, in  order  to  determine  what  are  the  specific 
limitations  which  these  provisions  impose,  it  will  be  neces- 
sary to  refer  to  the  limitations  upon  the  police  power  in 
general. 

It  has  already  been  determined  that,  in  the  exercise  of  the 
police  power,  personal  liberty  can  be  subjected  to  only  such 
restraint  as  may  be  necessary  to  prevent  damage  to  others  or 
to  the  public.1  Police  power,  generally,  is  limited  in  its 
exercise  to  the  enforcement  of  the  maxim,  sic  utere  luo 
ut  alienum  non  Icedas.2 

Whenever,  therefore,  the  prosecution  of  a  particular  call- 
ing threatens  damage  to  the  public  or  to  other  individuals, 
it  is  a  legitimate  subject  for  police  regulation  to  the  extent 
of  preventing  the  evil.  It  is  always  within  the  discretion 
of  the  legislature  to  institute  such  regulations  when  the 
proper  case  arises,  and  to  determine  upon  the  character  of 
the  regulations.  But  it  is  a  strictly  judicial  question, 
whether  the  trade  or  calling  is  of  such  a  nature,  as  to 
require  or  justify  police  regulation.  The  legislature  cannot 
declare  a  certain  employment  to  be  injurious  to  the  public 
good,  and  prohibit  it,  when,  as  a  matter  of  fact,  it  is  a 

forbidden  by  the  Missouri  statute,  is  wholesome.  It  is  not  so  much 
urged  that  anything  in  the  constitution  of  Missouri  forbids  or  limits  its 
power  in  this  respect  by  express  language,  as  that  the  exercise  of  such  a 
power  in  regard  to  a  property  shown  to  be  entirely  innocent,  incapable 
of  any  injurious  results  or  damage  to  the  public  health  and  safety,  Is  an 
unwarranted  invasion  of  public  and  private  rights,  an  assumption  of 
power  without  authority  in  the  nature  of  our  institutions,  and  an  inter- 
ference with  the  natural  rights  of  the  citizen  and  the  public,  which  does 
not  come  within  the  province  of  legislation.  The  proposition  has  great 
force,  and  in  the  absence  of  any  presentation  of  the  motives  and  circum- 
stances, which  governed  the  legislature  in  enacting  the  law,  we  should 
have  difficulty  in  saying  it  is  unsound."  Justice  Miller,  In  re  John 
Brosnahan,  Jr.,  4  McCrary,  1. 

1  See  ante,  §  26. 

2  See  ante,  §  1. 

§    85 


238  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

harmless  occupation.  "The  position,  however,  is  taken 
on  the  part  of  the  State,  that  it  is  competent  for  the 
legislature,  whenever  it  shall  deem  proper,  to  declare  the 
existence  of  any  property  and  pursuit  deemed  injurious  to 
the  public,  nuisances,  and  to  destroy  and  prohibit  them, 
as  such ;  and  that  such  an  action  of  the  legislature  is  not 
subject  to  be  reviewed  by  the  courts.  We  deny  this  posi- 
tion. We  deny  that  the  legislature  can  enlarge  its  power 
over  property  or  pursuits  by  declaring  them  nuisances,  or 
by  enacting  a  definition  of  a  nuisance  that  will  cover  them. 
Whatever  it  has  a  right  by  the  constitution  to  prohibit  or 
to  confiscate,  it  may  thus  deal  with,  without  first  declaring 
the  matter  to  be  a  nuisance  ;  and  whatever  it  has  not  a 
right  by  the  constitution  to  prohibit  and  confiscate,  it 
cannot  thus  deal  with,  even  though  it  first  declare  it  a 
nuisance."  *  It  is  also  a  judicial  question  whether  the 
police  regulation  extends  beyond  the  threatened  evil,  and 
prohibits  that  which  involves  no  threatening  danger  to 
the  public.  If  it  is  unconstitutional  to  impose  police  regula- 
tions upon  an  innocent  calling,  it  must  be  likewise  uncon- 
stitutional to  place  an  occupation  under  police  restraint 
beyond  what  is  necessary  to  dissipate  the  threatening  evil. 
The  legislature  has  the  choice  of  means  to  prevent  evil  to 
the  public,  but  the  means  chosen  must  not  go  beyond  the 
prevention  of  the  evil  and  prohibit  what  does  not  cause  the 

1  Beebe  v.  State,  26  Ind.  501.  See,  also,  City  of  Richmond  v.  Southern 
Bell  Telephone  &  Telegraph  Co.,  85  Fed.  19;  Dillon  v.  Erie  Ry.  Co.,  19 
Misc.  Rep.  16;  43  N.  Y.  S.  320;  Ex  parte  Whitwell,  98  Cal.  73.  In  City 
of  Richmond  v.  Southern  Bell  Telephone  &  Tel.  Co.,  supra,  it  is  ex- 
pressly declared  that  the  courts  must  declare  invalid  all  regulations, 
which  promote  no  public  good,  but  which  to  no  public  purpose  oppress, 
control,  and  possibly  defeat  the  existence  of  the  business  or  the  cor- 
poration which  is  thus  subjected  to  police  regulation.  On  the  other 
hand,  in  Dillon  v.  Erie  Ry.  Co.,  supra,  the  mere  fact,  that  a  regulation 
so  reduces  the  profits  of  a  business  as  to  amount  to  a  confiscation,  does 
not  make  the  regulation  unreasonable  and  unconstitutional,  as  long  as 
the  regulation  relates  to  a  business  which  is  affected  with  a  public 
interest,  and  it  is  necessary  in  order  to  promote  that  public  interest. 
§  85 


PROHIBITION   AS   TO   CERTAIN   CLASSES.  239 

evil.  To  illustrate,  the  keeping  of  a  public  gambling  house 
is  in  itself  a  public  evil,  and  the  legislature  may  place  it 
under  whatever  police  control  it  may  see  fit,  even  to  the 
extent  of  prohibiting  the  keeping  of  them.  But  the  pro- 
fession of  medicine  is  a  proper  and  necessary  calling, 
and  if  pursued  only  by  men,  possessed  of  skill,  instead  of 
threatening  public  evil,  is  of  the  highest  value  to  a  commun- 
ity. The  only  evil,  involved  in  the  prosecution  of  that 
calling,  is  that  which  arises  from  the  admission  of  incompe- 
tent men  into  the  profession.  The  police  regulation  of  the 
practice  of  medicine  must,  therefore,  be  confined  to  the 
evil,  and  any  prohibition  or  other  restrictive  regulation 
which  went  beyond  the  exclusion  of  ignorant  or  dishonest 
men,  would  be  unconstitutional.  The  police  regulation  of 
trades  and  professions,  must,  therefore,  be  limited  to  such 
restrictions  and  limitations  as  may  be  necessary  to  prevent 
damage  to  the  public  or  to  third  persons.  Keeping  these 
general  rules  in  mind,  we  will  now  consider  the  various 
methods  of  police  interference  with  employments. 

§  86.  Prohibition  as  to  certain  classes.  —  A  calling  may 
be  generally  harmless,  when  prosecuted  by  some  classes  of 
persons,  and  very  harmful  when  engaged  in  by  others. 
Thus,  for  example,  it  can  readily  be  seen  that  the  keeping 
of  billiard  saloons,  of  bar  rooms,  and  other  public  resorts 
by  women,  will  prove  highly  injurious  to  the  public  morals, 
while  there  is  no  such  peculiar  danger  arising  from  the 
keeping  of  such  places  by  men.  A  law  which  prohibited 
women  from  engaging  in  these  occupations  would  be  for 
that  reason  justifiable  under  the  constitutional  limitations.1 

i  See  Blair  v.  Kilpatrick,  40  Ind.  312;  State  v.  Considine,  16  Wash. 
358;  Bergman  v.  Cleveland,  39  Ohio  St.  651;  in  which  it  was  held  that  the 
granting  of  liquor  licenses  to  men  only,  did  not  violate  the  constitutional 
provisions  against  the  granting  of  special  privileges.  But  under  the  con- 
stitution of  California,  which  provides  that  no  person  shall  be  disqualified 
by  sex  from  pursuing  any  lawful  vocation,  it  was  held  that  a  similar  reg- 
ulation, excluding  females  from  employment  in  certain  kinds  of  drinking 

§  86 


240  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

Regulations  have  also  been  sustained,  which  were  designed 
to  prevent  men  of  bad  repute  from  engaging  in  employ- 
ments, which  from  their  nature  are  likely  to  become  public 
nuisances,  if  conducted  without  safeguards.  Thus  it  has 
been  common,  for  this  reason,  to  require  hack  men,  and 
keepers  of  places  of  public  resort,  to  take  out  a  license,  and 
to  give  security  for  their  good  behavior  or  testimonials  of 
good  character.  It  has  also  been  held  that  "  the  State  may 
forbid  certain  classes  of  persons  being  employed  in  occupa- 
tions which  their  age,  sex,  or  health  renders  unsuitable  for 
them,  as  women  and  young  children  are  sometimes  forbidden 
to  be  employed  in  mines  and  certain  kinds  of  manufac- 
ture." l  The  regulations,  prohibiting  women  and  children 
from  being  employed  in  certain  callings  or  trades,  are  be- 
coming quite  common,  particularly  in  regard  to  child  labor. 
In  the  case  of  women,  the  prohibition  relates  generally  to 
working  in  mines.  But  children  under  ages,  stated  in  and 
varying  with  the  provisions  of  the  different  States,  are  in 
some  States  prohibited  altogether  from  working  outside  of 
their  homes,  while  in  others  they  are  only  prohibited  from 
engaging  in  certain  kinds  of  work.  The  total  prohibition 
is  designed  to  aid  in  the  enforcement  of  the  attendance 
upon  the  school,  and  both  the  total  and  partial  prohibitions 

saloons,  was  unconstitutional.  Matter  of  Maguire,  57  Cal.  604  (40  Am. 
Rep.  125) ;  In  re  Considine,  83  F.  157.  But  see  Ex  parte  Felchin,  96  Cal. 
360,  in  which  it  was  held  to  be  not  unconstitutional,  to  exact  a  license 
fee  of  $30  per  quarter  of  saloon  keepers  in  general,  and  a  fee  of  $150 
where  a  female  is  employed  as  bartender,  actress,  dancer  or  singer. 
This  was  held  to  be  no  violation  of  the  constitutional  provision  that  "no 
person  shall,  on  account  of  sex,  be  disqualified  from  entering  upon  or 
pursuing  any  lawful  business,  vocation  or  profession." 

1  Cooley  Const.  Law,  p.  231.  In  Com.  v.  Hamilton  Manfg.  Co.,  120 
Mass.  383,  it  was  held  that  a  statute  prohibiting  the  employment  of  all 
persons  under  eighteen,  and  of  all  women  in  laboring  in  any  manufactur- 
ing establishment  more  than  60  hours  per  week  (Maes.  Stat.  1874),  vio- 
lates no  contract  implied  in  the  granting  of  a  charter  to  any  manufactur- 
ing company,  nor  any  right  reserved  under  the  constitution  to  any  citizen, 
and  may  be  maintained  as  a  health  or  police  regulation. 

§    86 


POLICE   REGULATIONS    OF   TRADES    AND    PROFESSIONS.      241 

of  child  labor  are  designed  to  promote  their  physical  and 
mental  growth,  by  the  removal  of  all  strains,  which  may 
be  caused  by  excessive  labor.  In  so  far  as  the  employ- 
ment of  a  certain  class  in  a  particular  occupation  may 
threaten  or  inflict  damage  upon  the  public  or  third  persons, 
there  can  be  no  doubt  as  to  the  constitutionality  of  any 
statute  which  prohibits  their  prosecution  of  that  trade. 
But  it  is  questionable,  except  in  the  case  of  minors,  whether 
the  prohibition  can  rest  upon  the  claim  that  the  employ- 
ment will  prove  hurtful  to  them.  Minors  are  under  the 
guardianship  of  the  State,  and  their  actions  can  be  con- 
trolled so  that  they  may  not  injure  themselves.1  But  when 
they  have  arrived  at  majority  they  pass  out  of  the  state  of 
tutelage,  and  stand  before  the  law  free  from  all  restraint, 
except  that  which  may  be  necessary  to  prevent  the  infliction 
by  them  of  injury  upon  others.  It  may  be,  and  probably 
is,  permissible  for  the  State  to  prohibit  pregnant  women 
from  engaging  in  certain  employments,  which  would  be 
likely  to  prove  injurious  to  the  unborn  child;  but  there  can 
be  no  more  justification  for  the  prohibition  of  the  prosecu- 
tion of  certain  callings  by  women,  because  the  employment 
will  prove  hurtful  to  themselves,  than  it  would  be  for  the 
State  to  prohibit  men  from  working  in  the  manufacture  of 
white  lead,  because  they  are  apt  to  contract  lead  poisoning, 
or  to  prohibit  occupation  in  certain  parts  of  iron  smelting 
works,  because  the  lives  of  the  men  so  engaged  are  mate- 
rially shortened. 

§  87.  Police  regulation  of  skilled  trades  and  learned 
professions.  —  Where  the  successful  prosecution  of  a  call- 
ing requires  a  certain  amount  of  technical  knowledge  and 
professional  skill,  and  the  lack  of  them  in  the  practitioner 
will  result  in  material  damage  to  the  one  who  employs  him, 
it  is  a  legitimate  exercise  of  police  power  to  prohibit  any 

1  People  v.  Ewer,  141  N.  Y.  129. 

16  §    87 


242  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

one  from  engaging  in  the  calling  who  has  not  previously 
been  examined  by  the  lawfully  constituted  authority  and 
received  a  certificate  in  testimony  of  his  qualification  to  prac- 
tice the  profession.  The  right  of  the  State  to  exercise  this 
control  over  skilled  trades  and  the  learned  professions,  with 
a  single  exception  in  respect  to  teachers  and  expounders  of 
religion,  has  never  been  seriously  questioned.  Thus  we  find 
in  every  State  statutes  which  provide  for  the  examination 
of  those  who  wish  to  engage  in  the  practice  of  the  law,  of 
medicine  and  surgery,  of  pharmacy,  and  of  those  who  desire 
to  ply  the  trade  of  plumbing.1  And  sometimes  we  find 
statutes  which  require  all  engineers  to  be  examined  before 
they  are  permitted  to  take  charge  of  an  engine.  So,  also, 
in  England,  it  was  once  made  necessary  for  one  to  serve  an 
apprenticeship  before  he  was  permitted  to  pursue  any  one 
of  the  skilled  trades.  That  is  not  now  the  law  in  the  United 
States,  but  there  would  be  no  constitutional  objection  to 
such  a  statute,  if  it  were  enacted.  Judge  Cooley  says: 
"  No  one  has  any  right  to  practice  law  or  medicine  except 
under  the  regulations  the  State  may  prescribe.  *  *  * 
The  privilege  may  be  given  to  one  sex  and  denied  to  the 
other,  and  other  discriminations  equally  arbitrary  may 
doubtless  be  established."  2  A  distinguished  judge  of  Mis- 
souri says  there  can  be  no  doubt  "  that  the  legislature  of 
Missouri  can  declare  the  practice  of  law  or  medicine  an 
unlawful  calling,  if  they  thought  fit  to  do  so."8  If  the 
rules  heretofore  laid  down  for  the  determination  of  the  lim- 
itation of  the  police  control  of  employments  be  sustainable, 
the  position  of  these  distinguished  judges  is  untenable.  The 
professions  of  law  and  medicine  are  profitable  employments, 
to  the  public  as  well  as  to  the  practitioners ;  and  the  only  ele- 
ments of  danger  arising  from  the  practice  of  them  lies  in  the 
admission  of  incompetent  persons  into  them.  Any  prohibi- 

1  State  v.  Gardner,  58  Ohio  St.  599. 

2  Cooley  on  Torts,  pp.  289,  290. 

3  Napton,  J.,  in  Austin  v.  State,  10  Mo.  991. 

§   87 


POLICE    REGULATIONS    OF    TRADES    AND    PROFESSIONS.      243 

tion  which  extends  further  than  to  prevent  the  admission  of 
incompetent  men  will  be  unconstitutional. 

It  has  been  held  that  women  can  be  denied  the  right  to 
engage  in  the  practice  of  law.1  In  the  State  court  the  prin- 
cipal ground  for  a  denial  of  the  plaintiff's  right  to  engage 
in  the  practice  of  law  was  maintained  to  be  that, 
"as  a  married  woman  (she)  would  be  bound  neither 
by  her  express  contracts,  nor  by  those  implied  contracts, 
which  it  is  the  policy  of  the  law  to  create  between  attor- 
ney and  client."  In  the  Supreme  Court  of  the  United 
States,  although  the  opinion  of  the  court,  delivered  by 
Justice  Miller,  was  rested  upon  the  fact  that  the  practice 
of  law  in  Illinois  was  not  one  of  the  privileges  and 
immunities  of  citizens  of  the  United  States,  as  such 
and  therefore  did  not  come  within  the  jurisdiction  of  the 
court,  in  a  separate  opinion  by  Judge  Bradley,  in  which 
Judges  Field  and  Swayne  concur,  it  is  claimed  that  the  stat- 
utes of  a  State  may  prohibit  a  woman  from  practicing  law, 
because,  on  account  of  the  supposed  difference  in  her  mental 
capacity,  she  cannot  acquire  that  degree  of  skill  which  the 
successful  practice  of  the  law  requires.12  Of  course,  a  mar- 

1  Bradwell  v.  State,  55  111.  535;  s.  c.  16  Wall.  130.     In  Ex  parte  Lock- 
wood,   154  U.  S.  116,  it  was    held    to    be  within  the  province  of  the 
courts  of  a  State  to  determine  whether  they  shall  admit  to  practice  at 
the  local  bar  women  who  had  been  admitted  to  the   bar  of  some  other 
State,  although  the  statute  of  the  first  State  provided  for  the  admission 
on  motion  of  the  lawyers  of  other  States. 

2  "  In  the  nature  of  things  it  is  not  every  citizen  of  every  age,  sex,  and 
condition  that  is  qualified  for  every  calling  and  position.    It  Is  the  pre- 
rogative of  the  legislator  to  prescribe  regulations  founded  upon  nature, 
reason  and  experience  for  the  due  admission  of  qualified  persons  to  pro- 
fessions and  callings  demanding  special  skill  and  confidence.    This  fairly 
belongs  to  the  police  power  of  the  State;  and  in  my  opinion,  in  view  of 
the  peculiar  characteristics,  destiny  and  mission  of  woman,  it  is  within 
the  province  of  the  legislature  to  ordain  what  offices,  positions,  and  call- 
ings shall  be  filled  and  discharged  by  men,  and  shall  receive  the  benefit 
of  those  energies  and  responsibilities,  and  that  decision  and  firmness 
which  are  presumed  to  predominate  in  the  sterner  sex.    For  these  rea- 
sons I  think  that  the  laws  of  Illinois  now  complained  of  are  not  obnox- 

§   87 


244  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

ried  woman,  under  her  strict  common-law  disabilities,  can- 
not make  binding  contracts,  and  it  would  be  impossible  for 
her  to  be  sued  on  any  express  or  implied  obligation  which 
she  may  have  incurred  in  the  practice.  This  no  doubt 
would  furnish  a  justification  for  a  statute  which  prohibited 
married  women  from  engaging  in  the  practice  of  law,  pro- 
vided the  disabilities  thus  imposed  by  the  law  are  them- 
selves constitutional.1  But  in  respect  to  the  inability  of 
women  to  attain  the  standard  of  professional  skill  required 
by  the  law  to  insure  clients  against  the  ignorant  blunderings 
of  attorneys,  one  is  forced  to  the  conclusion  that  this,  like 
very  many  other  venerable  distinctions  between  the  sexes, 
is  the  result  of  sexual  prejudice.  Later  adjudications  have 
conceded  to  women  the  right  to  practice  law,  and  it  is  prob- 
able that  in  the  course  of  time,  when  the  influence  of  the 
common  law  conceptions  of  the  legal  status  of  woman  is 
dissipated  altogether,  any  law  which  denied  to  woman  the 
right  to  enter  the  legal  profession  on  terms  of  equality 
with  men,  would  be  pronounced  by  the  courts  generally  to 
be  unconstitutional.2 

Judge  Cooley's  position,  in  respect  to  the  unlimited 
power  of  the  State  to  regulate  the  practice  of  law  and  med- 
icine is  that  the  practice  of  these  professions  is  a  privilege, 

ious  to  the  charge  of  abridging  any  of  the  privileges  and  immunities  of 
citizens  of  the  United  States."  Opinion  of  Justice  Bradley,  concurred 
in  by  JJ.  Swayne  and  Field,  in  Bradwell  v.  Illinois,  16  Wall.  142. 

1  As  to  which  see  post,  §  193. 

2  In  In  re  Leach,  134  Ind.  665,  the  court  held  that  women  had  a  right 
to  be  admitted  to  the  bar,  although  the  constitution  of  the  State  declares 
that  every  person  of  good  character,  being  a  voter,  shall  be  entitled  to 
admission  to  the  bar  on  prescribed  conditions.    In  Bicker's  Petition,  66 
N.  H.  207,  the  court  held  that  membership  of  the  bar  and  the  right  to 
practice  the  law  is  not  a  public  office,  so  as  to  exclude  women,  under  the 
common  law  rule,  which  denies  to  women  the  right  of  suffrage  and  pub- 
lic office.    In  Pennsylvania,  the  right  of  women  to  practice  law  is  con- 
ceded.   In  re  Kast's  Case,  3  Pa.  Dist.  302;  14  Pa.  Co.  Ct.  432;   Richard- 
son's Case,  3  Pa.  Dist.  299.    The  position  of  the  New  Hampshire  Court 
was  taken  in  In  re  Thomas,  16  Colo.  441. 

§    87 


POLICE    REGULATIONS    OF    TKADES    AND    PROFESSIONS.      245 

and  cannot  be  demanded  as  a  matter  of  right.  I  can  see  no 
ground  upon  which  this  claim  may  be  supported,  so  far  as 
it  refers  to  medicine.  The  physician  and  surgeon  derives 
no  peculiar  benefit  from  the  State,  and  there  can  be  no 
substantial  difference  between  his  right  to  pursue  his  call- 
ing and  that  of  a  teacher  to  ply  his  vocation,  or  of  the  mer- 
chant to  engage  in  business.  They  are  not  enjoying  any 
peculiar  privilege.  Nor  can  I  see  any  reason  for  looking 
upon  the  practice  of  latv,  outside  of  the  courts,  as  a  privi- 
lege. I  cannot  see  why  it  is  a  peculiar  privilege,  derivable 
from  the  State,  for  an  attorney  to  draw  up  a  deed,  or  to 
make  a  will  for  a  client.  But  inasmuch  as  courts  are  crea- 
tures of  the  law,  and  independently  of  the  State,  there  can 
be  no  courts  and  no  advocates,  the  right  to  appear  for 
another  in  a  court  of  justice  may  be  considered  a  privilege 
which  may  be  denied  or  granted  at  the  pleasure  of  the 
State  authorities.  In  England,  at  an  early  day,  one  accused 
of  crime  was  not  allowed  to  have  counsel,  and  the  right  to 
appear  by  counsel  in  any  case,  rests  upon  rule  of  law. 
Yet  even  with  this  concession,  it  may  still  be  claimed  that 
such  a  privilege  should  be  granted  equally  and  to  all,  to 
avoid  the  constitutional  objection  to  the  granting  of  unequal 
or  special  privileges  and  immunities.1 

1  The  constitutionality  of  the  regulations  of  the  right  to  practice  law 
has  often  been  questioned.  Thus  a  statute  has  been  held  to  be  unconsti- 
tutional which  required  attorneys  to  take  an  oath  that  they  have  not  en- 
gaged in  dueling,  as  a  condition  precedent  to  practicing  law.  Matter  of 
Dorsey,  7  Port.  (Ala.)  293.  It  had  also  been  held  to  be  unconstitutional 
for  a  statute  to  prohibit  one  from  engaging  in  the  practice  of  Jaw  who 
had  served  in  the  Confederate  Army  in  the  war  of  the  rebellion,  or  to 
require  them  to  take  an  oath  that  they  have  never  taken  up  arms  against 
the  Upited  States.  Ex  parte  Tenney,  2  Duv.  (Ky.)  351 ;  Ex  parte  Law,  35 
Ga.  285 ;  Ex  parte  Garland,  4  Wall.  333 ;  Cuinmings  v.  Missouri,  4  Wall.  277. 
But  it  is  constitutional  to  require  attorneys  to  take  the  oath  of  allegiance 
to  the  United  States  government.  Cohen  v.  Wright,  22  Cal.  293 ;  Ex  parte 
Yale,  24  Cal.  241.  And  in  order  that  he  may  be  disbarred,  precise  and 
specific  charges  of  malpractice  or  unprofessional  behavior  must  be 
brought  against  him,  and  he  must  have  an  opportunity  to  be  heard  in  his 

§    87 


246  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

In  respect  to  the  regulation  of  the  practice  of  medicine, 
the  constitutionality  of  laws  has  likewise  been  questioned 
and  contested  in  numerous  cases,  but  the  regulations  have 
been  sustained  whenever  they  were  reasonable  in  serving 
to  promote  the  public  safety  and  welfare.1  Similar 

own  defense.  State  v.  Watkins,  3  Mo.  480;  Matter  of  Mills,  1  Mich.  392; 
State  v.  Start,  7  Iowa,  499;  Fisher's  Case,  6  Leigh,  619;  Withers  v.  State, 
36  Ala.  252;  Ex  parte  Percy,  36  N.  Y.  651. 

1  By  a  Massachusetts  law  it  was  provided  that  no  one  can  be  permitted 
to  recover  by  legal  process  the  fees  he  has  earned  in  the  practice  of  med- 
icine and  surgery,  unless  he  has  been  licensed  by  the  Massachusetts  Med- 
ical Society  or  was  graduated  as  a  doctor  of  medicine  in  Harvard  Uni- 
versity :  the  statute  was  held  to  be  constitutional.  Hewitt  v.  Charier,  16 
Pick.  353.  So,  also,  an  act  of  Nevada,  providing  that  graduation  from  a 
medical  college  was  necessary  to  receive  a  license  to  practice  medicine 
except  in  the  case  of  those  who  have  practiced  for  ten  years  in  that  State, 
was  held  to  be  not  unconstitutional,  because  it  does  not  make  a 
similar  exception  in  favor  of  those  'who  had  practiced  for  the 
same  length  of  time  elsewhere.  Ex  parte  Spinney,  10  Nev.  323. 
See,  also,  to  the  same  effect,  Peoples.  Hasbrouck  (Utah),  39  P.  918; 
Gee  Wo  v.  State,  36  Neb.  513;  Driscoll  v.  Commonwealth,  93  Ky. 
393;  Williams  v.  People,  121  111.  84;  Richardson  v.  State,  47  Ark. 
562;  State  v.  Randolph,  23  Oreg.  74.  It  seems  as  if  the  denial  to  those 
who  were  already  engaged  in  the  practice  of  medicine  of  the  right  to 
continue  their  practice,  unless  they  procure  a  license,  which  is  based 
upon  an  examination  into  their  moral  and  professional  fitness,  would  be 
unconstitutional,  and  an  unlawful  deprivation  of  one's  personal  liberty. 
Such,  at  least,  seems  to  be  the  inference  from  Kohenstrat  v.  State,  4  Ohio 
N.  P.  257;  6  Ohio  Dec.  451;  France  v.  State,  57  Ohio  St.  1.  But  see 
State  v,  Call,  121  N.  C.  643;  State  v.  Corey,  4  Wash.  St.  424;  Iowa 
Eclectic  Med.  Col.  v.  Schrader,  87  Iowa.  659.  It  has  been  held  to  be 
constitutional  to  require  examination  into  the  moral  character,  as  well 
as  into  the  educational  acquirements  of  an  applicant  for  a  certificate  to 
practice  medicine.  State  v.  Hathaway,  115  Mo.  36;  France  v.  State,  67 
Ohio  St.  1.  On  the  power  of  the  State  in  general  to  require  an  exam- 
ination and  a  certificate  or  license,  in  order  to  practice  medicine,  see 
State  v.  Dent,  25  W.  Va.  1;  Wert  v.  Clutter,  37  Ohio  St.  347;  State  V. 
State  Board  Medical  Examiners,  32  Minn.  324;  Great  Western  Ry.  ». 
Bacon,  30  111.  353;  Harbaugh  v.  City  of  Monmouth,  74  111.  367;  Eastman 
v.  State,  109  Ind.  278;  Orr  ».  Meek,  111  Ind.  40;  State  ».  Webster,  150 
Ind.  607;  In  re  Roe  Chung  (N.  M.),  49  P.  952.  In  Kentucky,  it  is 
intimated  that  any  discrimination  against  a  particular  school  of  medi- 
cine, In  the  recognition  of  their  diplomas  as  a  license  to  practice  medi- 
cine, would  be  unconstitutioaal.  Driscoll  v.  Commonwealth,  93  Ey. 
§  87 


POLICE    REGULATIONS    OF    TRADES    AND    PROFESSIONS.       247 

regulations  have  held  to  be  constitutional  when  they  have 
been  applied  to  the  practice  of  dentistry *  and  of  pharmacy.2 
The  "  Boilers  Inspection  Act  "  of  Minnesota,  requiring  in- 
spection of  boilers  and  the  licensing  of  engineers,  has  been 
sustained  as  a  constitutional  exercise  of  police  powers.3 
Recently  plumbers  have  been  required  to  be  examined  and 
licensed.  These  regulations  of  the  business  of  plumbing  have 
been  sustained  as  a  constitutional  exercise  of  police  power. 
If  it  is  lawful  to  require  sanitary  plumbing  in  buildings  *  it 
is  certainly  reasonable  to  examine  into  the  qualifications  of 
plumbers  and  their  ability  to  construct  sanitary  plumbing.5 

393;  Commonwealth  v.  Rice,  93  Ky.  393;  Rice  v.  Commonwealth  (Ky.)f 
20  S.  W.  703.  But  in  Iowa,  it  was  held  to  be  constitutional  to  require  a 
State  examination  of  all  physicians  whether  they  have  been  in  practice,  or 
what  school  of  medicine  they  may  represent.  Iowa  Eclectic  Med.  Col.  v. 
Schrader,  87  Iowa,  659;  Allopathic  State  Board  of  Medical  Examiners  v. 
Fowler,  50  La.  Ann.  1358;  State  t>.  Calls,  121  N.  C.  643;  State  v.  Corey,  4 
Wash.  St.  424 ;  State  v.  Webster,  150  Ind.  607.  Osteopathy  is  so  far  recog- 
nized as  a  branch  of  medicine,  as  to  require  its  practitioners  to  be  licensed, 
before  they  can  lawfully  practice.  Eastman  v.  People,  71  111.  App.  236. 

1  Commonwealth  v.  Gibson,  7  Pa.  Dist.  Rep.  386;  Knowles  ».  State, 
87  Md.  204;  Ferner  w.  State,  151  Ind.  247. 

2  State  v.  Forcier,  65  N.  H.  42;  Suffolk  County  v.   Shaw,  47  N.  Y.  S. 
349;  21  App.  Div.  145;  Com.  v.  Zacharias,  5  Pa.  Dist.  Rep.  475;  State  v. 
Heinemann,  80  Wis.  253;  Luck  v.  Sears,  29  Oreg.  421;  People  v.  Mohr- 
man,  86  Mich.  434.     In  Luck  v.  Sears,  the  possesion  of  opium  and  other 
poisonous  drugs  by  any  one  not  a  licensed  pharmacist  or  physician  is 
prohibited,  unless  such  drug  has  been  prescribed  by  a  licensed  physician 
or  pharmacist.    And,  in  People  v.  Mohrman,  the  regulations  prohibit 
physicians  from  keeping   "  open  shops  for  the  retailing,  disbursing  or 
compounding  of  medicines  and  poisons,"  unless  they  comply  with  the 
requirements  of  the  act  for  the  licensing  of  druggists. 

3  State  Ex  rel.  Graham  v.  McMahon,  65  Minn.  453.    In  this  statute 
locomotive  engineers  and  engines  were  expressly  excepted  from  the  oper- 
ation of  the  statute.     In  Louisville  &  N.  Ry.  Co.  v.  Baldwin,  85  Ala.  619, 
a  statute  requiring  all  locomotive  engineers  and  others  in  the  employ  of 
the  railroads,  who,  in  any  capacity,  are  required  to  distinguish  color  sig- 
nals, to  submit  to  examination  for  color  blindness,  was  held  to  be  con- 
stitutional, except  so  far  as  the  statute  requires  the  railroads  to  pay  the 
fees  for  the  examinations. 

4  As  to  which,  see  post,  Chapter  X. 

5  People  v.  Warden  City  Prison,  144  N.  Y.  529;  affg.  81  Hun,  434;  State 

§    87 


248  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

In  respect  to  the  clerical  profession,  the  constitutional 
guaranties  against  encroachments  on  religious  liberty  and 
freedom  of  worship  would  be  violated,  if  an  attempt  were 
made  by  the  State  to  determine  who  shall  minister  to  the 
spiritual  wants  of  the  people.  Every  individual,  and  every 
body  of  people,  have  a  constitutional  right  to  select  their 
own  clergymen  and  expounders  of  religion,  and  it  can 
never,  under  our  present  constitutions,  which  ordain  a 
complete  separation  of  church  and  State,  become  a  matter 
of  State  regulation,  as  it  is  in  some  of  the  states  of  Europe. 

§  88.  Regulation  of  practice  in  the  learned  pro- 
fessions. —  Not  only  does  the  State  undertake  to  prescribe 
the  terms  and  conditions  for  the  admission  of  members  to  the 
learned  professions,  so  as  to  exclude  dishonest  and  incompe- 
tent men  ;  but  in  some  instances  laws  have  been  enacted  to 
regulate  the  practice  of  the  professions.  Thus,  at  common 
law,  attorneys  were  prohibited  from  making  contracts  with 
their  clients  to  receive  a  certain  portion  of  what  is  recovered 
in  a  suit,  as  compensation  for  their  services.  This  was 
called  champerty.  It  is  still  the  law  everywhere,  in  the 
absence  of  a  repealing  statute;  but  public  opinion,  in 
respect  to  the  character  of  the  offense,  has  so  far  changed 
that  the  law  has  become  a  dead  letter;  and  reputable  at- 
torneys are  daily  accepting  fees,  contingent  upon  the 
success  of  the  suit,  and  proportionate  to  the  amount  recov- 
ered in  the  judgment.  It  is  also  a  common  rule  of  the 
court  that  attorneys  will  not  be  allowed  to  become  bail  or 
surety  for  their  clients  in  a  pending  suit.1 

v.  Gardner,  58  Ohio  St.  599.  In  the  New  York  act,  master  and  employing* 
plumbers  were  alone  required  to  be  examined,  and  did  not  require  jour- 
neymen plumbers  to  be  examined.  In  State  v.  Gardner,  supra,  it  is  held 
that  the  Ohio  law  is  not  constitutionally  objectionable  because  it  requires  • 
only  one  member  of  a  firm  of  plumbers  to  obtain  a  plumbers'  license  and 
to  be  registered.  As  to  this  last  proposition  see  contra,  State  ex  rel. 
Winkler  v.  Benzenberg,  101  Wis.  172. 

1  Cooley  on  Torts,  p.  290;  Cooley  Const.  Law,  pp.  231,  232. 
§   88 


REGULATION  OF  PRACTICE  IN  LEARNED  PROFESSIONS-       249 

In  their  capacity  as  officers  of  the  court,  attorneys  have 
from  a  very  early  day,  both  in  England  and  in  this  coun- 
try, been  held  to  be  liable  to  be  ordered  to  assume  the  de- 
fense of  persons  who  are  on  trial  under  the  charge  of  some 
crime  or  infraction  of  the  criminal  law.  And  they  are 
obliged  to  perform  this  duty,  when  ordered,  unless  they 
are  able  to  induce  the  trial  judge  to  excuse  them.  At  the 
present  time,  in  most  of  the  States,  this  matter  is  regulated 
by  statute,  and  provision  is  made  for  the  compensation  by 
the  State  of  the  attorney,  when  serving  thus  under  the 
orders  of  the  court.  But  at  an  earlier  day  it  was  the  uni- 
versal practice  for  attorneys  to  perform  this  duty  to  pauper 
criminals  gratuitously.  It  has  been  recently  held  to  be 
constitutional,  and  no  infringement  of  liberty  or  property 
of  an  attorney  to  compel  him  to  serve  such  a  criminal 
without  compensation.1 

In  the  practice  of  medicine,  an  attempt  has  often  been 
made  by  the  old  school  of  medicine,  the  school  of  allo- 
pathy, to  bring  homeopathy  into  legal  disrepute,  and  to 
deny  to  practitioners  of  that  school  equal  privileges  before 
the  law ;  but  the  police  power  of  the  State  can  never  be 
exercised  in  favor  of  or  against  any  system  of  medicine.2 
The  police  power  can  be  brought  to  bear  upon  quacks,  and 
disreputable  practitioners,  to  whichever  school  they  may 
belong,  but  when  reputable  and  intelligent  members  of  the 
profession  differ  in  theories  of  practice,  the  State  has  no 
power  to  determine  which  of  them,  if  either,  is  wrong.3 

In  the  practice  of  medicine,  however,  there  are  legal  regu- 
lations which  the  members  of  the  profession  are  obliged  to 
observe.  It  is  well  known  that  when  a  death  occurs,  the 
physician  who  has  been  in  attendance  upon  the  deceased  is 

1  Presby  ».  Klickitat  County,  5  Wash.  St.  329. 

2  See  White  v.  Carroll,  42  N.  Y.  161. 

8  Love  v.  Sheffelin,  7  Fla.  40;  Massie  v.  Mann,  17  Iowa,  131;  Miles  ». 
Clarke,  4  Bosw.  632;  Ryckman  v.  Coleman,  13  A.bb.  Pr.  898.  But  see 
Abbott  v.  Zeigler,  9  Ind.  511. 

§    88 


250     REGULATION  OF  TRADES  AND  OCCUPATIONS. 

obliged  by  the  law  to  furnish  a  certificate,  setting  forth  the 
cause  of  death;  this  certificate  being  required,  before  there 
can  be  aburial,withoutacoroner'sinquest.  Itisalso  required 
sometimes  of  physicians  to  report  to  the  health  officer  all 
cases  of  infectious  or  contagious  diseases,  which  they  have 
in  charge.  Such  regulations  are  readily  justifiable;  the 
first,  because  the  physician's  certificate  assists  in  pre- 
venting the  burial  of  those  who  have  met  with  a  wrongful 
or  violent  death;  and  the  second,  because  information  con- 
cerning the  location  of  cases  of  infectious  and  contagious 
diseases  will  enable  the  health  officers  to  employ  safeguards 
to  prevent  an  epidemic.  But  it  is  not  quite  so  clear  that 
the  State  has  the  right  to  require  physicians  and  mid  wives 
to  report  to  some  officer,  within  a  certain  time,  all  births 
and  deaths  which  may  come  under  their  supervision,  sub- 
ject to  a  penalty  for  failing  to  perform  the  duty  thus  re- 
quired of  them.  This  regulation  is  now  becoming  quite 
common,  and  the  object  of  it  is  to  facilitate  the  collection 
of  statistics.  In  a  case  before  the  Supreme  Court  of  Iowa, 
such  a  law  was  sustained  as  constitutional ;  and  probably 
the  practical  utility  of  the  law,  and  the  absence  of  any  ex- 
cessive burden  in  requiring  this  duty  of  the  physician,  will 
in  all  cases  furnish  sufficient  justification  for  the  enactment 
of  the  law.1 

In  support  of  legislation  for  the  prevention  of  intoxica- 
tion, it  has  been  held  not  unreasonable  for  an  ordinance  to 
make  it  unlawful  for  a  physician  to  prescribe  liquor  for  a 

1  "  The  statute  requires  the  collection  of  statistics  pertaining  to  the 
population  of  the  State,  and  the  health  of  the  people,  which  may  impart 
information  useful  in  the  enactment  of  laws,  and  valuable  to  science  and 
the  medical  profession,  to  whom  the  people  look  for  remedies  for  disease 
and  for  means  tending  to  preserve  health.  The  objects  of  the  statute 
are  within  the  authority  of  the  State  and  may  be  attained  in  the  exercise 
of  its  police  power.  Similar  objects  are  contemplated  by  statutes  re- 
quiring a  census  to  be  periodically  taken,  the  constitutionality  of  which 
we  have  never  heard  questioned."  Robinson  v.  Hamilton,  60  Iowa,  184 
(46  Am.  Rep.  63). 

§  88 


REGULATION  OF  SALE  OF  ARJICLES  OF  MERCHANDISE.   251 

well  man.1  As  an  attempt  to  evade  a  law,  it  is  clearly  per- 
missible to  prohibit  it,  and  if  any  question  can  arise  in  that 
connection,  it  would  have  reference  to  the  validity  of  the 
law  whose  enforcement  is  designed  to  be  attained  by  the 
ordinance.  If  it  was  permissible  for  the  State  or  town  to 
prohibit  the  sale  of  liquor  except  for  medicinal  purposes, 
it  was  proper  enough  for  the  town  or  State  to  prohibit  an 
evasion  of  the  law  by  means  of  false  prescriptions. 

Although  the  clerical  profession  cannot  be  subjected 
to  police  supervision,  so  far  as  to  determine  the  character 
of  its  personnel,  or  of  the  doctrines  to  be  taught;  yet 
clergymen  in  the  performance  of  duties,  which  are  collateral 
to  their  main  duties,  and  which  have  a  civil  phase  as  well 
as  a  religious  phase,  may  be  subjected  to  the  regulations  of 
the  State.  Thus  it  is  becoming  more  and  more  common 
for  State  laws  to  prohibit  the  solemnization  of  marriages 
unless  the  parties  have  previously  received  a  marriage  license 
from  some  civil  officer,  and  requiring  the  clergyman  to  re- 
turn the  license,  with  a  certificate  from  himself,  announcing 
the  day  of  the  marriage.  Marriage  is  a  civil  status,  as  well 
as  a  religious  institution,  and  the  two  are  so  intimately 
blended  that  its  regulation  by  the  State  in  its  former  char- 
acter controls  its  regulation  by  the  church. 

§  89.  Regulation  of  sale  of  certain  articles  of  mer- 
chandise.—  The  regulations,  which  would  fall  under  this 
heading,  are  very  numerous,  and  most  of  them  are  free 
from  all  doubt  in  respect  to  their  validity  under  our  con- 
stitutional limitations.  They  are  instituted  for  the  pur- 
pose, either  of  preventing  injury  to  the  public,  or  of  thwart- 
ing all  attempts  of  the  vendor  to  defraud  the  vendee. 

A  regulation,  whatever  may  be  its  character,  which  is 
instituted  for  the  purpose  of  preventing  injury  to  the  pub- 
lic, and  which  does  tend  to  furnish  the  desired  protection, 

i  Carthage  v.  Buckner,  4  111.  App.  317. 

§    89 


252  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

is  clearly  constitutional.  A  good  example  of  this  class  of 
regulations,  would  be  the  Kentucky  statute,  which  is  also 
found  in  other  States,  providing  for  the  inspection  of  kero- 
sene and  other  oils,  with  a  view  to  prohibit  the  sale  of  such 
as  ignite  below  a  certain  degree  of  heat.  Such  a  law  is 
a  plain  and  reasonable  exercise  of  the  police  power  of 
the  State.1  So  would  be  any  law,  providing  for  the  in- 
spection of  fresh  meat,2  and  other  reasonable  provisions, 
which  are  intended  to  protect  the  public  from  the  danger, 
arising  from  the  consumption  of  unwholesome  food. 
For  example,  laws  are  to  be  found  in  almost  every  State 

1  Patterson  v.  Kentucky,  97  U.  S.  501.    To  the  same  effect,  see  Willis 
v.  Standard  Oil  Co.,  50  Minn.  290. 

2  But  while  statutory  provisions  for  the  inspection  of  fresh  meat,  for 
the  purpose  of  preventing  the  sale  of  unwholesome  and  tainted  meats, 
are  constitutional,  and  do  not  violate  any  provision  of  the  national  or 
State  constitutions,  if  they  are  reasonable,  and  have  only  the  effect  of 
condemning  the  sale  of  unwholesome  meats ;  yet  they  must  be  of  such 
a  nature  that  they  will  not  be  an  unconstitutional  restraint  upon  inter- 
state commerce.    Thus,  in  Brimmer  v.  Rebman,  138  U.  S.  78,  the  Virginia 
inspection  law  was  held  to  be  an  unconstitutional  interference  with  inter- 
State  commerce,  in  that  it  required  all  fresh  meats,  which  have  been 
slaughtered  100  miles  away  from  the  place  of  sale,  to  be  inspected  by  the 
local  inspector,  and  the  owner  to  pay  a  fee  of  one  cent  per  pound  for 
inspection.     The  Supreme  Court  held  the  fee  to  be  excessive,  and  to  make 
the  act  tantamount  to  the  prohibition  of  wholesome  meat,  which  had  not 
been  slaughtered  within  a  radius  of  100  miles  of  the  place  of  sale.    The 
same  conclusion  was  reached  in  State  v.  Klein,  126  Ind.  68,  and  Hoffman 
v.  Harvey,  128  Ind.  600,  as  to  the  ^constitutionality  of  the  Indiana 
inspection  law,  so  far  as  it  required  the  examination  of  the  animal  before 
slaughtering  and  within  the  State.    It  was  held  to  be  a  prohibition  of 
the  sale  of  meats  dressed  outside  of  the  State.    See,  also,  to  the  same 
effect,  as  to  the  unconstitutionally  of  similar  provisions  of  the  Minnesota 
law:     Minnesota  v.  Barber,  136  U.  S.  313;  In  re  Barber,  39  Fed.  641; 
Swift  v.  Sutphin,  39  Fed.  630.    But  reasonable  inspection  laws  are  con- 
stitutional.   State   v.  People's   Slaughterhouse,  etc.,  Co.,  46  La.  Ann. 
1031.    Thus,  it  has  been  held  to  be  constitutional  for  a  State  to  provide  . 
by  statute  regulations  for  the  control,  supervision  and  inspection  of 
stockyards,  for  the  preservation  of  the  public  health,  not  only  of  the 
vicinity,  but,  likewise,  of  the  consumers  of  meat  in  general.    Cotting  w. 
Kansas  City  Stockyards  Co.,  79  Fed.  679;   Higginson  v.  Kansas  City 
Stockyards  Co.,  79  Fed.  679. 

§    89 


REGULATION  OF  SALE  OF  ARTICLES  OF  MERCHANDISE.      253 

for  the  inspection  of  milk,  and  the  condemnation  and  pun- 
ishment of  the  sale  of  adulterated  milk.  Such  laws  are 
undoubtedly  constitutional  when  they  go  no  further  than  to 
prohibit  and  prevent  the  adulteration  of  milk.1  So,  also, 
the  State  may,  it  has  been  held,  require  vendors  of  fertil- 
izers to  have  them  inspected  to  protect  citizens  against 
fraud  in  the  adulteration  of  the  goods,  and  impose  upon 
such  vendors  the  cost  of  inspection  even  where  the  tax  ap- 
pears to  be  in  excess  of  the  cost  of  inspection,  if  it  is  not 
prohibitive  in  character.2 

Another  common  regulation  for  the  purpose  of  prevent- 
ing adulterations  of  foods  is  that  of  preventing  the  intro- 
duction into  vinegar  of  foreign  substances  which  are 
designed  to  color  it.  Such  statutes  are  to  be  found  in  a 
number  of  the  States,  including  New  York,  Indiana  and 
Illinois.  If  the  coloring  matter  is  harmless,  i.  e.,  not  in- 
jurious to  health,  it  is  very  difficult  to  find  a  justification 
for  such  a  regulation.  But  these  laws,  in  relation  to  vine- 
gar, have  been  sustained  as  constitutional,  as  a  means  of 
preventing  the  deception  of  the  public  by  concealing  its 
true  or  natural  appearance.3 

1  State  v.  Campbell,  64  N.  H.  402.    The  New  York  statute  was  held  to 
be  unobjectionable,  although  it  provided  that  the  chemical  analysis  of 
the  milk  shall  be  taken  as  conclusive  evidence  that  the  milk  has  been 
adulterated,  which  can  be  contradicted  only  by  an  opposing  chemical 
analysis  of  the  same  stock  of  milk.      People  v.  Cipperly,  101  N.  Y.  634; 
People  v.  Eddy,  59  Hun,  615.      And  the  general  requirement  that  milk 
vendors  shall,  upon  the  demand  of  a  health  inspector,  furnish  him  with  a 
sample  of  the  milk  offered  for  sale  without  the  receipt  of  payment  there- 
for, has  been  sustained  as  a  constitutional  exercise  of  police  power. 
State  v.  Dupaquier,  46  La.  Ann.  577.      In  this  case  the  amount  which 
might  be  demanded  by  the  inspector  for  inspection  and  analysis  was 
limited  to  a  one-half  pint. 

2  Patapsco  Guano  Co.  v.  Bd.  of  Agriculture  of  N.  C.,  52  Fed.  690; 
Steiner  v.  Ray,  84  Ala.  93;  Vanmeter  v.  Spurrier,  94  Ky.  22. 

3  In  People  v.  Girard,  145  N.  Y.  105,  Judge  Finch  says,  in  reply  to  the 
argument  that  the  law  in  question  was   an  interference  with  a  vested 
right:  "  Sometimes  it  (this  argument)  is  pertinent  and  weighty,  but  in 
this  case  it  is  neither.    It  becomes  the  assertion  of  a  vested  right  to  color 

§  89 


254  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

Similar  and  dissimilar  legislation  have  been  enacted  in 
the  various  States,  regulating  the  sale  and  manufacture  of 
oleomargarine,  a  well-known  substitute  for  butter,  which  is 
manufactured  out  of  the  fatty  deposits  of  the  cow,  and 
cotton-seed  oil,  and  so  prepared  that  it  is  a  wholesome  food, 
and  resembles  butter  in  appearance  and  taste.  In  a  sub- 
sequent section,  the  attempt,  sometimes  successful  and 
sometimes  unsuccessful,  to  prohibit  altogether  the  manu- 
facture and  sale  of  oleomargarine,  is  explained  and  the 
objections  to  such  prohibitive  legislation  are  fully  set  forth.1 
Here,  reference  is  made  only  to  legislation  which  has  for 
its  object  the  regulation  of  the  manufacture  and  sale  of 
the  article  in  question.  In  the  face  of  the  almost  universal 
concession  that  oleomargarine,  as  manufactured,  is  not  an 
unwholesome  food,  regulations  which  fall  short  of  a  total 
prohibition  of  its  manufacture  and  sale,  can  be  justified 
only  on  the  ground,  that,  as  manufactured,  the  product  is 

a  food  product  so  as  to  conceal  or  disguise  its  true  or  natural  appear- 
ance; in  plain  words,  a  vested  right  to  deceive  the  public."  In  the  same 
case  it  was  expressly  declared  that  proof  of  the  innocuous  character  of 
the  coloring  matter  was  not  sufficient  to  establish  the  claim  that  the  law 
was  an  unconstitutional  exercise  of  police  power.  People  v.  Girard,  73 
Hun,  457.  The  same  position  has  been  taken  in  the  case  of  Weller  v. 
State,  53  Ohio  St.  77,  in  respect  to  the  constitutionality  of  a  similar  stat- 
ute. The  court  say,  inter  alia:  "  Much  is  claimed  from  the  fact  that  it 
was  admitted  on  the  trial  that  the  vinegar  of  the  defendant  was  whole- 
some, and  that  it  did  not  intend  to  deceive  any  one  by  using  the  roasted 
malt  (as  coloring  matter)  and  labeling  and  selling  his  product  as  '  malt 
vinegar.'  But  this  is  wholly  immaterial.  It  matters  not  what  his  inten- 
tions may  have  been.  The  tendency  of  such  devices  is  to  deceive  the 
public,  and  the  statute  was  enacted  to  afford  it  protection  therefrom. 
Such  a  statute  is  clearly  within  the  proper  exercise  of  the  police  power  of 
the  State."  In  the  Ohio  case  it  was  claimed  that  the  only  purpose  of 
the  coloring  matter,  in  itself  harmless,  was  to  give  the  product  a  pleas- 
ing color  and  aroma.  And  in  the  New  York  case  it  was  stated  that  the 
coloring  need  not  have  been  used  for  the  purpose  of  making  it  resem- 
ble some  other  kind  of  vinegar  or  other  product,  in  order  that  the  act 
may  be  held  to  be  constitutional.  See,  also,  to  the  same  effect,  Williams 
o.  McNeal,  7  Ohio  C.  C.  280. 
1  See  post,  §  122. 
§  89 


REGULATION  OF  SALE  OF  ARTICLES  OF  MERCHANDISE.      255 

so  prepared  as  to  enable  the  dealer  to  sell  it  as  genuine 
butter,  and  thus  practice  successfully  a  fraud  upon  the 
public.  And  all  the  regulations,  varied  as  they  are  in  char- 
acter and  effect,  seem  to  have  as  their  object  the  prevention 
of  this  fraud.  In  some  of  the  States,  oleomargarine  is  re- 
quired to  be  colored  pink  so  that  it  cannot  be  mistaken  for 
butter,  and  the  regulation  has  been  held  to  be  constitutional, 
although  the  manifest  mercantile  effect  of  the  regulation  is 
the  material  discouragement  of  the  trade  in  the  product.1 
On  the  other  hand,  in  other  States,  manufacturers  are 
simply  prohibited  from  coloring  oleomargarine  so  as  to 
resemble  butter  ;  recognizing  the  fact  that  dairymen  almost 
invariably  employ  annotto  in  coloring  pure  butter,  in 
order  to  give  it  that  well-known  brilliant  and  pleasing 
color.  In  these  States,  the  manufacturers  are  prohibited 
from  using  the  same  coloring  matter,  or  from  producing 
by  any  means  in  the  oleomargarine  the  same  color  which 
is  so  commonly  produced  by  annotto  in  pure  butter.  And 
the  courts  have  pronounced  this  legislation  to  be  a  consti- 
tutional exercise  of  police  power.2  A  more  moderate,  and 


*  Armour  Packing  Co.  v.  Snyder,  84  Fed.  136;  State  v.  Marshall,  64 
N.  H.  649;  State  ex  rel.  Weideman  v.  Horgan,  55  Minn.  183. 

2  People  ».  Arensberg,  105  N.  Y.  123;  People  v.  Briggs,  114  N.  Y.  56; 
State  v.  Newton  (N.  J.),  14  Atl.  664;  State  v.  Bockstruck,  136  Mo.  336. 
In  the  light  of  the  cases  on  the  prohibition  of  the  use  of  coloring  matter 
in  the  manufacture  of  vinegar,  supra,  it  would  be  reasonable  to  affirm  that 
a  law  would  be  constitutional,  which  prohibited  the  use  of  coloring  mat- 
ter in  the  manufacture  of  butter,  so  that  all  butter  shall  have  the  pale 
color  of  so-called  country  butter.  In  a  recent  case  in  New  Jersey, 
Ainmon  v.  Newton,  50  N.  J.  L.  543,  it  was  held  that  a  statute,  which 
made  it  an  offense  for  any  one  to  have  in  his  possession  for  the  pur- 
pose of  sale  "  oleomargarine  that  is  colored,  stained  or  mixed  with 
annotto  or  any  other  coloring  matter  or  substance,"  did  not  prohibit  the 
use  of  cotton  seed  oil  in  the  manufacture  of  olemargarine,  as  that  was 
a  nutritious  vegetable  compound,  and  it  was  used  not  only  for  the  pur- 
puse  of  giving  color  to  the  product,  but  it  likewise  constituted  one  of 
its  substantial  ingredients.  In  the  application  of  the  rule  noscitur  a 
sociia,  the  court  held  the  language  of  the  New  Jersey  statute,  "  or  any 
other  coloring  matter  or  substance,"  to  apply  to  and  include  only  those 

§  89 


256     REGULATION  OF  TRADES  AND  OCCUPATIONS. 

hence  more  reasonable,  regulation  of  the  sale  of  oleomar- 
garine, is  to  be  found  in  some  of  the  States,  which  re- 
quires the  purchaser  to  be  notified  in  some  way  of  the  fact 
that  he  is  buying  oleomargarine.  A  very  common  regula- 
tion is  to  require  the  package  to  be  wrapped  up  in  paper, 
with  the  name,  olemargarine,  stamped  or  printed  thereon  in 
large  letters.1  It  has  also  been  held  to  be  constitutional 
for  a  State  law  to  require,  in  the  sale  of  substitutes  for 
lard,  that  the  substitute  character  of  the  compound  should 
be  indicated  by  a  printed  Libel  or  card.2  These  decisions, 
relating  to  compound  foods,  may  be  accepted  as  proof  pos- 
itive that  the  judicial  mind  of  this  country  is  unalterably 
opposed  to  the  proposed  substitution  for  natural  foods  of 
chemically  prepared  pellets,  containing  in  proper  propor- 
tions the  quantities  of  protein,  fats  and  carbo-hydrates, 
which  chemical  analysis  has  declared  to  be  required  to  sus- 
tain life  in  health  and  vigor. 

Probably,  it  may  be  accepted  as  a  constitutional  limita- 
tion of  the  police  power  of  the  State  in  this   connection, 

things  which  may  be  employed  in  the  manufacture  of  oleomargarine  for 
the  purpose  of  so  coloring  the  product  as  to  resemble  butter,  and  to 
enable  it  to  be  fraudulently  sold  as  butter.  The  court  say :  "  The  lan- 
guage cannot,  with  propriety,  be  interpreted  so  as  to  include  (within  its 
prohibition)  materials  employed  chiefly  to  make  up  the  substance  of  the 
compound,  and  which  imparts  some  color  only  as  a  necessary  incident 
of  their  use." 

1  In  New  Jersey,  the  State  law  was  sustained  as  constitutional,  which 
required  the  dealers  in  the  product,   to  furnish  each  purchaser  of  oleo- 
margarine with  a  card  or  printed  notice,  with  letters  of  a  prescribed 
size,  on  which  it  is  stated  that  it  is  oleomargarine  which  the  purchaser 
is  buying,  and  the  name  and  address  of  the  dealer  are  given.    Bayles». 
Newton,  50  N.  J.  L.  549.    And  in  Massachusetts,  a  law  was  sustained, 
which  required  the  vendors  of  oleomargarine  to  deliver  the  package  in  a 
wagon,  containing  on  both  sides  a  large  sign,  announcing:  "  Licensed  to 
sell  oleomargarine."    Commonwealth  v.  Crane,  158  Mass.  218.    In  Mary- 
land the  packages  of  oleomargine  are  required  to  be  stamped  with  the 
name.    Pierce  v.  State,  68  Md.  692. 

2  State  v.  Aslesen,  50  Minn.  5;  State  v.  Bassett,  50  Minn.  5;  State  v. 
Snow,  81  Iowa,  642. 

$    89 


REGULATION  OF  SALE  OF  ARTICLES  OF  MERCHANDISE.      257 

which  will  be  generally  recognized  and  enforced,  that  no 
State  law  of  the  kind  just  explained,  regulating  the  sale  of 
articles  of  food,  will  be  enforcible  against  the  original 
packages 1  of  interstate  commerce,  unless  it  can  be  shown 
that  the  object  of  the  regulation  is  to  prevent  injury  to  the 
health  of  the  public  by  the  purchase  of  unwholesome  food. 
At  least,  that  was  the  conclusion  of  the  Federal  court  in  a 
case,  involving  the  inquiry  into  the  constitutionality  of  a 
State  law,  which  made  it  a  misdemeanor  to  sell  baking 
powder,  containing  alum,  unless  the  package  have  a 
label  stating  that  the  powder  contained  alum.2  Probably, 
the  Legislature  of  New  York  had  in  view  the  protection  of 
the  public  against  the  purchase  of  unwholesome,  adulterated 
or  inferior  food,  when  it  made  it  a  misdemeanor  for  any 
person,  who  sells  food,  to  give  away  therewith,  as  a  part  of 
the  transaction  of  sale,  any  other  thing  of  value  as  a 
premium  or  gift.  But  the  New  York  Court  of  Appeals 
pronounced  the  law  to  be  an  unconstitutional  interference 
with  the  liberty  of  contract,  which  was  not  justified  by  any 
legislative  intention  to  protect  the  public  from  fraud 
or  deception.3 

It  has  been  held  to  be  a  constitutional  exercise  of  police 
power  for  the  legislature  to  prohibit  the  sale,  offer  for  sale, 
or  having  possession  for  the  purpose  of  sale,  of  articles 
marked  "  sterling,"  which  do  not  contain  i-<nro  parts  of 
silver.  The  deception  is  so  patent  in  that  case,  that  it  is 
difficult  to  see  why  the  constitutionality  of  the  law  should 
be  questioned.4  So,  likewise,  has  it  been  held  to  be  con- 
stitutional for  a  State  law  to  make  it  a  misdemeanor  to 
sell  second-hand  bottles,  which  have  been  stamped  with  the 
name  of  the  original  purchaser  for  his  use  in  his  business, 
without  the  consent  of  the  owner  of  the  stamp.  And  it  is 

1  As  to  the  meaning  of  "  original  packages  "  see  post,  §  220. 
1  In  re  Ware,  53  Fad.  783. 
1  People  v.  Gillson,  109  N.  Y.  389. 

«  People  v.  Webster,  17  Misc.  Rep.  (N.  Y.)  410;  40  N.  Y.  S.  1135. 

17  §    89 


258  REGULATION   OF   TRADES    AND   OCCUPATIONS. 

reasonable  and  constitutional  for  such  law  to  make  the 
possession  of  such  bottles,  by  a  dealer  in  second-hand 
bottles,  prima  facie  evidence  of  his  intention  to  sell 
them.1 

In  order  to  promote  the  interests  and  welfare  of  trade- 
unions  and  other  associations  of  workmen,  those  whose 
members  are  employed  in  the  manufacture  of  commercial 
commodities  have  adopted  labels  and  trade-marks,  which 
they  attach  to  the  goods  which  they  manufacture,  believing 
that,  by  enabling  the  public  to  distinguish  union-made 
goods:  i.  e.,  goods  made  by  the  members  of  a  trade-union, 
they  thereby  promote  the  interests  of  workingmen,  and 
the  development  of  trade-unions.  Laws  have  been  passed 
in  a  number  of  the  States  providing  for  the  regis- 
tration with  the  Secretary  of  State  of  these  labels  and 
trade-marks ;  and  authorizing  the  union,  when  its  label 
has  been  so  registered,  to  enjoin  its  unauthorized  use  or 
counterfeiting  by  others,  and  recover  damages ;  and,  in 
some  States,  providing  that  the  counterfeiting  and  misuse 
of  the  label  shall  be  punishable  as  a  criminal  misde- 
meanor. Laws  of  this  kind  are  to  be  found  in  New 
York,  New  Jersey,  Illinois,  and  Missouri.  The  fact 
that  some  people,  in  each  of  these  States,  have  consid- 
ered it  necessary  or  advisable  to  resist  the  enforcement 
of  these  laws,  would  indicate  that  these  labels  did  exert 
some  influence  in  trade  in  favor  of  union-made  goods, 
sufficient  to  induce  others  to  make  an  unauthorized  use 
of  them.  The  laws  in  question  have  been  claimed  to  be 
unconstitutional,  in  that  they  enable  a  successful  discrim- 
ination against  workmen  who  are  not  members  of  a  union. 
This  principle  has  induced  the  New  Jersey  court  to  pro- 

1  People  7).  Cannon,  63  Hun,  306 ;  8.  c.  139  N.  Y.  32 ;  People  v.  Quinn, 
139  N.  Y.  32;  People  v.  Bartholf,  139  N.  Y.  32  A  similar  regulation  has 
been  sustained  In  regard  to  the  sale  by  another  of  milk  or  cream  cans, 
which  are  stamped  with  the  name  or  initials  of  a  dealer  in  those  dairy 
products.  Bell  v.  Qaynor,  14  Misc.  Rep.  (N.  Y.)  334;  36  N.  Y.  S.  122. 
§  89 


REGULATION  OF  SALE  OF  ARTICLES  OF  MERCHANDISE.      259 

nounce  the  law  unconstitutional ; l  hut  in  the  other  cases, 
in  which  the  constitutionality  of  the  law  has  been  ques- 
tioned, the  law  has  been  sustained.2  The  labor  organiza- 

O 

tions  have  also  secured  legislation  which  is  hostile  to 
goods  made  by  convicts,  and  requires  that  all  such  goods 
shall  be  labeled  as  convict-made.  Inasmuch  as  the  labor 
of  the  convict  is  a  commodity  which  is  owned  by  the 
State,  there  is  probably  no  ground  upon  which  the  con- 
stitutionality of  the  law  can  be  contested,  so  far  as  its 
provisions  relate  to  the  goods  made  in  the  penitentiaries 
of  the  State  which  enacts  the  laws;  and  do  not  have 
any  retroactive  effect,  either  upon  goods  already  manufac- 
tured by  convicts,  or  upon  contracts  already  made  by  the 
State  with  manufacturers  for  the  employment  of  the  con- 
victs. Any  retroactive  effect  of  that  kind  would  undoubt- 
edly be  an  unconstitutional  interference  with  vested  rights.3 
To  enforce  such  a  law  against  goods  made  by  convicts  in 
other  States,  would  be  an  unconstitutional  interference 
with  interstate  commerce.4 

A  curious  bit  of  legislation,  evidently  designed  and  so 
declared,  to  prevent  fraud  in  the  sale  of  goods,  is  a  statute 
of  Ohio,  which  provides  that  no  vendor  shall  advertise, 
represent,  hold  forth,  any  sale  as  bankrupt,  insolvent,  etc., 
or  closing  out  sale,  or  as  a  sale  of  goods  damaged  by  smoke, 
fire,  water,  or  otherwise,  unless  these  facts  are  stated 
under  oath  in  a  communication  to  the  Secretary  of  State, 
accompanied  by  a  deposit  of  $500,  and  a  license  procured 
from  the  State  and  town  in  which  he  proposes  to  sell  the 
goods  so  described  and  advertised.  Its  constitutionality 

1  Schmalz  v.  Woolley,  56  N.  J.  Eq.  649. 

8  Perkins  o.  Heert,  5  App.  Div.  (N.  Y.)  335;  Cohn  v.  People,  149  111. 
486;  State  v.  Bishop,  128  Mo.  373. 

3  People   v.  Hawkins,    10    Misc.   Rep.  (N.  Y.)  65;  31  N.  Y.  S.  115, 
where  the  law  was  attempted  to  be   enforced   against   goods  already 
manufactured  by  convicts. 

4  People  v.  Hawkins,  47  N.  Y.  S.  56;  20  App.  Dlv.  494, 

§    89 


260  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

has  been  sustained.1  But  it  would  seein  that  the  evil  effects 
of  the  frauds  aimed  at  are  too  insignificant  to  justify  such 
severe  regulations,  which  amount  to  a  practical  prohibition 
of  such  sales  by  any  one  but  large  dealers,  and  except  when 
the  goods  are  of  considerable  value. 

A  fruitful  occasion  for  the  practice  of  fraud  and  oppres- 
sion is  afforded  in  conditional  sales,  where  provision  is  made 
for  payment  of  goods  purchased  in  installments,  the  vendor 
retaining  title  until  the  purchase  price  has  been  paid  in  full, 
and  reserving  the  right  to  retake  the  property  if  there  is  a 
default  in  payment  of  any  installment,  without  a  repayment 
to  the  purchaser  of  any  part  of  the  money  which  has  been 
paid  on  account.  Statutes  have  been  passed,  requiring  a 
return  of  the  purchase-money  in  such  a  case,  permitting 
the  vendor  to  retain  only  a  reasonable  sum  as  compensation 
for  the  use  of  the  goods.  The  constitutionality  of  this 
law  has  been  sustained,2  and  many  of  the  courts,  which 
have  the  equity  powers  of  the  English  Court  of  Chancery, 
have,  in  the  exercise  of  those  powers,  compelled  a  similar 
restitution  of  the  purchase  money,  when  the  vendor  exer- 
cised his  contractual  right  to  retake  the  goods.3 

But  where  there  is  no  danger  of  injury  to  the  public,  it 
is  difficult  to  determine  how  far  the  State  may  by  its  police 
regulations  attempt  to  protect  private  individuals  against 
each  other's  frauds.  A  fraud  is,  of  course,  a  trespass  upon 
another's  private  rights,  and  can  always  be  punished,  when 
committed.  It  is  therefore  but  rational  to  suppose  that  the 
State  may  institute  any  reasonable  preventive  remedy, 
when  the  frequency  of  the  frauds,  or  the  difficulty  experi- 

1  In  re  Hosier  8  Ohio  C.  C.  324. 

2  Weil  v.  State,  3  Ohio,  C.  C.  657. 

3  Hine  ».  Roberts,  48  Conn.  267;  Mott  o.  Havana  Nat.  Bank,  22  Hun, 
354;  Guilford  v.  McKinley,  61  Ga.  230;  Ketchum  v.  Brennan,  53  Miss. 
596;  Preston  t>.  Whitney,  23  Mich.  260;  Johnson  v.  Whittemore,  27  Mich. 
463 ;  Third  Nat.  Bank  v.  Armstrong,  25  Minn.  530 ;  Minneapolis  &c.  Co • 
t>.  Hally,  27  Minn.  496. 

§   89 


REGULATION  OF  SALE  OF  ARTICLES  OF  MERCHANDISE.      261 

enced  in  circumventing  them,  is  so  great  that  no  other 
means  will  prove  efficacious.  Where,  therefore,  police 
regulations  are  established,  which  give  to  private  parties 
increased  facilities  for  detecting  and  preventing  fraud,  as  a 
general  proposition,  these  laws  are  free  from  all  constitu- 
tional objections.  Laws,  which  provide  for  the  inspection 
and  grading  of  flour,1  the  inspection  of  tobacco,2  the  in- 
spection and  regulation  of  weights  and  measures,3  the  reg- 
ulation of  weight  of  bread,4  requiring  all  lumber  to  bo 
surveyed,  by  a  public  surveyor,5  providing  for  the  weigh- 
ing of  coal  and  other  articles  of  heavy  bulk  on  the  public 
scales,6  are  constitutional  exercises  of  police  power,  so  far 
as  they  permit  one  party  to  compel  the  other  to  comply 
with  the  regulation,  in  the  absence  of  their  agreement  to 
the  contrary.  For  example,  it  is  permissible  for  a  statutory 
regulation  to  provide  for  standard  weights  and  measures, 
and  to  compel  their  use,  when  the  parties  have  not  agreed, 
upon  the  use  of  others.  But  it  cannot  be  reasonable  to 
prohibit  the  use  of  any  other  mode  of  measurement.7  It 
is  an  excessive  exercise  of  police  power,  when  the  law  com- 
pels one  to  make  use  of  the  means  provided  for  his  own 
protection  against  fraud.  The  same  distinction  would  ap- 
ply to  regulations,  requiring  the  inspection  and  weighing  of 
articles  of  merchandise  by  the  inspector  and  weigher,  and 
charging  a  certain  fee  for  the  same,  even  when  the  parties 
have  agreed  in  good  faith  to  waive  the  compliance  with  the 
regulation.  There  is  only  one  ground,  upon  which  this 

1  Glover  v.  Board  of  Flour  Inspectors,  48  Fed.  348. 
*  Turner  v.  Maryland,  107  U.  S.  38(22  Am.  Law  Reg.(x.  s.)  198,  note). 
8  Ritchie  v.  Boynton,  114  Mass.  431;  Eaton  v.  Keegan,  114  Mass.  433; 
Durgin  v.  Dyer,  68  Me.  143;  Woods  v.  Armstrong,  34  Ala.  150. 
4  Mobile  v.  Tuille,  3  Ala.  (N.  s.)  140. 
8  Pierce  v.  Kimball,  9  Me.  54  (23  Am.  Dec.  537). 

6  City  Council  v.  Rogers,  2McCord,495;  State  v.  Pittsburgh  &  S.  Coal 
Co.,  41  La.  Ann.  465;  Pittsburgh  &  S.  Coal  Co.  ».  Louisiana,  156  U.  S. 
§90. 

7  See  Eaton  v.  Keegan,  114  Mass.  433. 

§    89 


262  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

feature  of  such  laws  may  be  justified  ;  and  that  is,  to  in- 
sure the  State  against  the  expense  of  maintaining  a  public 
inspection,  and  the  provision  will  fall  under  the  head  of 
exceptional  burdens  or  special  taxation,  which  in  some  of 
the  States  is  prohibited.  But  the  authorities  do  not  sup- 
port this  view  of  such  regulations.  The  regulation  is  in 
most  cases  made  absolute,  and  the  observance  of  it  is  ob- 
ligatory upon  all.  Thus  it  has  been  held  that  a  city  ordi- 
nance may  require  hay  or  eoal  to  be  weighed  by  city 
weighers.1  Of  the  same  character,  is  the  New  York  law, 
which  provides  that  the  sale  of  oleomargarine,  or  other 
product  resembling  butter,  shall  be  prohibited,  unless  the 
box  or  other  receptacle,  in  which  it  is  kept,  shall  have  the 
true  name  of  the  article  plainly  stamped  upon  it.2  The  ob- 
ject of  the  law  is  the  prevention  of  fraud  and  is  a  reasonable 
police  regulation.  Of  a  similar  character  is  the  law,  which 
provides  that  druggists  must,  in  the  sale  of  all  poisons,  have 
upon  the  label  of  each  package  the  word  "  Poison  "  printed 
in  clear  type,  the  name  of  the  poison  and  a  statement  of  the 
ordinary  antidotes.  The  regulation  is  a  reasonable  and 
justifiable  one,  and  works  no  peculiar  hardship  upon  the 
pharmacist.  But  the  regulation  of  the  sale  of  poison 
assumes  an  interesting  and  peculiar  form,  when  it  is  ex- 
tended, as  it  is  in  some  of  the  States,  to  a  requirement, 
that  the  druggist  must  keep  a  register  of  the  poisons  sold 
and  the  names  of  purchasers.  Probably  a'  double  purpose 
is  intended  in  the  enforcement  of  this  regulation,  viz.:  the 
prevention  of  suicide  by  checking  the  purchase  of  poison 
for  such  a  purpose,  and  the  prevention  of  homicide  by 
poison,  by  facilitating  the  conviction  in  furnishing  evidence 
of  the  purchase  of  poison.  It  is  probable  that  the  law  is 
easily  sustainable  on  either  ground.8  While  the  common- 

1  Stokes  v.  New  York,  14  Wend.  87;  Yates  t>.  Milwaukee,  12  Wis.  673. 

2  See  supra,  same  section,  for  a  fuller  discussion  of  these  laws. 

3  Missouri  regulation  of  the  sale  of  opium;  held,  to  be  constitutional. 
State  v.  Lee,  137  Mo.  143. 

§  89 


REGULATIONS  TO  PREVENT  FKAUD.          263 

law  rule  making  suicide  a  crime  and  providing  a  certain 
punishment,  may  be  open  to  serious  constitutional  objec- 
tions,1 it  is  reasonable  to  suppose  a  man,  who  commits  sui- 
cide, to  be  sufficiently  insane  to  justify  State  interference, 
in  order  to  prevent  his  infliction  of  bodily  injury  upon  him- 
self.2 

§  90.  Regulations  to  prevent  fraud.  —  In  the  preceding 
section,  a  number  of  regulations,  for  the  purpose  of  pre- 
venting fraud  in  the  sale  of  goods,  wares  and  merchandise, 
have  been  explained,  and  their  constitutionality  elucidated. 
Fraud  is  of  course  hydra-headed,  and  threatens  every  busi- 
ness relation  in  life.  And  the  only  constitutional  question, 
which  can  be  raised,  in  respect  to  legislation  which  is 
designed  to  prevent  and  punish  fraud  in  intra-State 
transactions,  is  whether  the  regulations  go  no  farther  than 
is  necessary  to  prevent  or  punish  the  fraud,  and  do  not 
infringe  any  vested  rights,  which  can  be  enjoyed  without 
the  commission  of  the  fraud.  In  this  section,  are  included 
whatever  regulations  to  prevent  and  punish  fraud  have 
been  enacted,  which  do  not  specifically  refer  to  sales  of 
merchandise. 

A  very  common  regulation  is  that  which  requires  the 
names  of  partners  of  a  firm  to  be  made  public,  so  that  the 
creditors  of  the  partnership  may  know  to  what  individuals 
they  are  giving  credit.  These  regulations  are  varied  in 
form;  but  in  the  main  they  are  reasonable,  and  their  con- 
stitutionality cannot  be  successfully  contested.3 

1  See  ante,  §  10. 

2  On  the  other  hand  it  has  been  held  to  be  unconstitutional  to  require 
druggists  to  furnish  the  names  of  parties  to  whom  he  sells  liquor.     Clin- 
ton v.  Phillips,  58  111.  102  (11  Am.  Rep.  52). 

3  In  the  Ohio  statute,  partnerships  transacting  business  under  a  ficti- 
tious name  were  required  to  file  with  the  clerk  of  court  of  common  pleas 
a  certificate  giving  the  names  in  full  of  all  the  partners,  before  they  are 
entitled  to  maintain  an  action  on  any  partnership  transaction  or  contract. 
The  act  was  held  to  be  constitutional.     Hartzell  v.  Warren,  11  Ohio  C. 
C.  269;  s.  c.  10  C.  D.  183. 

§    90 


264  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

There  is  no  business,  in  which  popular  confidence  in  the 
honesty  and  reliability  of  those  engaged  therein,  and  the 
protection  against  fraud  and  imposition,  are  so  necessary 
to  the  public  welfare,  as  those  of  banking  and  insurance. 
For  that  reason,  we  find  in  every  State,  officials,  whose 
duty  is  to  look  into  and  superintend  these  businesses, 
so  that  a  trusting  and  unsuspecting  public  may  not  be 
defrauded. 

The  State  superintendent  of  banking  has  power  to  ex- 
amine the  books  of  any  banking  institution,  operating  under 
State  laws,  while  the  Controller  of  the  Currency  has  the 
same  power  of  control  over  national  banks,  which  have  been 
chartered  under  the  national  banking  law.  These  officers 
are  authorized  and  empowered  to  close  up  and  force  into 
liquidation  all  banks  and  bankers,  who  are  found  to  have  an 
impaired  capital,  or  who  are  in  an  insolvent  condition.  So 
far  as  the  author  knows,  the  constitutionality  of  these 
regulations  has  been  questioned  in  only  one  case;  and  in 
that  case,  their  constitutionality  has  been  sustained.1  A 
very  common  regulation  of  the  banking  business  is  that  of 
making  it  criminal  for  any  banker,  or  officer  of  a  bank,  to 
receive  money  or  deposit  when  he  knows  that  he  or  the 
bank  is  at  the  time  in  an  insolvent  condition.  The  consti- 
tutionality of  this  law  has  been  sustained.2  The  superin- 
tendence of  the  business  of  insurance  is  equally  common, 
and  in  every  State,  officials  have  the  power  to  refuse  the 
right  of  doing  business  to  any  insurance  company,  whose 
financial  condition  does  not  comply  with  and  satisfy  the 
requirements  of  the  State  law.  These  laws,  so  far  as  it  is 
known,  have  never  been  questioned.  But  in  Pennsylvania, 
a  statute  makes  it  unlawful  for  a  policy  of  insurance  to  be 
issued  by  any  person,  persons  or  firm  or  association,  unless 
authority  to  do  so  is  expressly  conferred  by  a  charter  of 

1  Blaker  v.  Hood,  53  Kan.  499.    In  that  case  the  law  was  enforced 
against  a  private  banker. 

2  Meadowcroft  v.  People,  163  111.  56. 

§   90 


LEGAL  TENDER  AND  REGULATION  OF  CURRENCY.   265 

incorporation.     The  constitutionally  of  the  law  has  been 

sustained.1 

§  91.  Legal  tender  and  regulation  of  currency. — Al- 
though Sociologists,  like  Herbert  Spencer,  may  doubt  the 
necessity,  and  condemn  the  practice,  of  the  regulation  of 
currency  by  the  government ;  and  although  the  private  coin- 
ing of  money  may  bo  permitted  without  any  detriment  to 
the  public  interests,  arising  from  the  general  debasement 
of  the  coin  :  no  constitutional  question  can  arise  in  respect 
to  the  exclusive  exercise  by  government  of  the  power  to 
coin  money  in  the  United  States ;  for  the  United  States 
constitution  gives  to  the  national  government  this  exclu- 
sive right.2  But  apart  from  any  special  constitutional 
provision,  and  on  general  principles  of  constitutional  law, 
this  phase  of  police  power  may  be  justified  on  the  plea  of 
public  necessity.  The  most  devoted  disciple  of  the  laissez 
faire  doctrine  will  admit  that  so  delicate  a  matter  as  the 
determination  of  the  standard  value  of  the  current  coin  can 
only  be  obtained  by  governmental  regulation.  In  the 
colonial  days,  and  in  the  days  of  the  confederation,  one  of 
the  greatest  evils,  and  the  most  serious  obstacle  to  com- 
mercial intercourse  between  the  States,  was  the  almost  end- 
less variety  of  coin  that  passed  current  in  different  places, 
and  the  difficulty  was  increased  by  the  employment  of  the 
same  names  to  denote,  in  different  places,  coins  of  different 
values.  If  the  States  and  colonies  could  not,  without  the 
interference  of  the  general  government,  procure  for  them- 
selves coin  of  uniform  value,  it  would  be  still  more  difficult 
for  the  commercial  world  to  attain  the  same  end.  The 
only  safe  course  is  to  vest  in  the  supreme  power  —  in  this 

1  Commonwealth  v.  Vrooman,  164  Pa.  St.  306.     See  post,  §  105,  for  a 
fuller  discussion  of  the  constitutionality  of  this  law. 

2  See  U.  S.  Const.,  art.  I.,  §  8,  in  which  it  is  provided  that  Congress 
shall  have  power  «'  to  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin." 

§    91 


266  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

country,  in  the  United  States  government  —  the  exclusive 
control  of  the  coin. 

The  necessity  for  a  public  coinage  may  not  be  so  great 
as  the  State  regulation  of  the  value  of  the  coins,  but  the 
danger  of  a  general  debasement  of  the  coin,  and  the  great 
possibilities  of  committing  fraud  upon  persons  who  gener- 
ally would  not  have  the  means  at  hand  for  detecting  the 
fraud,  would  be  a  sufficient  justification  of  the  denial  to 
private  individuals  of  the  right  to  coin  money. 

As  already  stated,  in  respect  to  the  exclusive  power  of 
the  United  States,  to  coin  money  and  to  regulate  the  value 
thereof,  no  doubt  can  arise.  But  grave  difficulties  are  met 
with,  in  determining  the  limitations  upon  the  power  of 
the  government  to  declare  what  shall  be  a  legal  tender  in 
the  payment  of  debts.  In  fact,  the  governmental  power  to 
coin  money  is  mainly  incidental  to  the  regulation  of  the 
matter  of  legal  tender.  Of  course,  the  power  to  facilitate 
exchange  by  the  creation  of  an  ample  currency  does  not 
necessarily  involve  the  creation  of  legal  tender.  For  ex- 
ample, national  bank  notes  are  currency,  but  they  are  not 
legal  tender.  But  the  need  of  a  determination  by  law, 
what  shall  constitute  a  legal  tender  for  the  payment  of  debts, 
led  inevitably  to  the  demand  for  the  creation  of  a  sufficient 
quantity  of  the  things,  called  money,  which  are  required  by 
law  to  be  tendered  in  payment  of  debts.  I  do  not  mean 
to  say  that  the  demand  for  a  legal  tender  preceded,  in  point 
of  historical  sequence,  the  need  of  a  currency.  But  from 
the  standpoint  of  police  power,  the  necessity  of  a  legal 
tender  requires  a  regulation  of  the  currency  of  the  govern- 
ment, instead  of  the  latter  bearing  the  relation  of  cause  to 
the  former. 

Now,  what  can  government  declare  to  be  a  legal  tender? 
There  can  be  no  doubt  that  the  government  has  the  power 
to  declare  its  own  coin  to  be  legal  tender.  And  it  may,  no 
doubt,  provide  that  certain  foreign  coins  shall  be  legal  tender 
at  their  real  value,  as  estimated  by  Congress;  nor  can  it  be 
§  91 


LEGAL  TENDER  AND  REGULATION  OF  CURRENCY.   267 

doubted  that  the  several  States  have  no  right  to  declare  any- 
thing else  but  gold  and  silver  to  be  a  legal  tender.1  But  it  is 
not  an  easy  matter  to  determine  the  limitations  of  the  power 
of  the  United  States  government,  in  the  matter  of  legal 
tender.  The  question  has  assumed  a  practical  form  by  the 
enactment  of  laws  by  Congress,  in  1862,  1863,  and  1878, 
declaring  the  treasury  notes  of  the  United  States  to  be 
legal  tender  in  payment  of  all  debts,  public  and  private. 
The  acts  of  1862  and  1863  were  passed  when  the  country 
was  rent  in  twain  by  a  gigantic  civil  war,  which  threatened 
the  existence  of  the  Union ;  and  they  were  prompted  by  the 
desire  to  force  the  notes  into  circulation,  and  procure  funds 
and  materials  for  the  prosecution  of  the  war.  In  reporting 
the  first  act  to  the  Senate,  the  chairman  of  the  committee  on 
finance  (Surnner)said:  *<  It  is  put  on  the  ground  of  absolute, 
overwhelming  necessity ;  that  the  government  has  now 
arrived  at  that  point  when  it  must  have  funds,  and  those 
funds  are  not  to  be  obtained  from  ordinary  sources,  or 
from  any  of  the  expedients  to  which  we  have  heretofore 
had  recourse,  and  therefore,  this  new,  anomalous  and  re- 
markable provision  must  be  resorted  to  in  order  to  enable 
the  government  to  pay  off  the  debt  that  it  now  owes,  and 
afford  circulation  which  will  be  available  for  other  pur- 
poses." 2  In  other  words,  in  order  to  furnish  the  govern- 
ment with  the  means,  which  the  exigencies  of  war  de- 
manded, Congress  made  use  of  a  power  which  is  possessed 
by  the  government  for  promoting  the  welfare  of  the  com- 
mercial world,  by  providing  a  uniform  mode  of  settlement 
of  debts.  The  establishment  of  a  legal  tender  has  for  its 
object  the  bestowal  of  benefits  upon  the  private  interests  of 
individuals,  and  was  not  intended  to  bo  a  source  of  reve- 
nue. It  cannot  be  doubted  that  this  is  the  real  object  of  a 
legal  tender.  The  question  then  arises,  can  Congress  em- 
ploy this  power  for  the  purpose  of  increasing  the  revenue? 

1  See  art.  I.,  §  10. 

3  Cong.  Globe,  1861-2,  Part  I.,  764. 

§    91 


268  REGULATION    OF  TRADES    AND   OCCUPATIONS. 

The  question  has  been  before  the  United  States  Supreme 
Court  several  times.  In  the  first  case,1  the  acts  of  1862-63, 
were  declared  to  be  unconstitutional  in  so  far  as  they  make 
the  treasury  notes  of  the  United  States  legal  tender  in  pay- 
ment of  existing  debts.  In  the  Legal  Tender  Cases,2  the 
opinion  of  the  court  in  Hepburn  v.  Griswold,  was  over- 
ruled, and  the  acts  of  1862  and  1863,  in  making  the  treas- 
ury notes  legal  tender,  were  declared  to  be  constitutional 
whether  they  applied  to  existing  or  subsequent  debts,  the 
burden  of  the  opinion  being  that  Congress  had  the  right,  as 
a  war  measure,  to  give  to  these  notes  the  character  of  legal 
tender.  In  1878,  Congress  passed  an  act,  providing  for  the 
re-issue  of  the  treasury  notes,  and  declared  them  to  be  legal 
tender  in  payment  of  all  public  and  private  debts.  In  a 
case,  arising  under  the  act  of  1878,  the  Supreme  Court  has 
finally  affirmed  the  opinion  set  forth  in  12  Wallace,  and  held 
further  that  the  power  of  the  government  to  make  the 
treasury  notes  legal  tender,  when  the  public  exigencies  re- 
quired, being  admitted,  it  becomes  a  question  of  legislative 
discretion,  when  the  public  welfare  demands  the  exercise  of 
the  power.3  This  decision  will  probably  constitute  the  final 
adjudication  of  this  question  ;  and  while  it  must  be  consid- 
ered as  settled,  at  least  for  the  present,  that  the  United 
States  has  the  power  to  make  its  treasury  notes  legal  ten- 
der, it  is  but  proper  that,  in  a  work  on  police  power,  the 
rule  of  the  court  should  be  criticised  and  tested  by  the  ap- 
plication of  the  ordinary  rules  of  constitutional  law.  The 
decision  is  so  important,  that  full  extracts  from  the  opinion 
of  the  court,  aud  the  dissenting  opinion  of  Justice  Field, 
have  been  inserted  in  the  note  below.4 

1  Hepburn  v.  Griswold,  8  Wall.  603. 

2  12  Wall.  457. 

3  Juillard  v,  Greenman,  110  U.  S.  421. 

4  "  By  the  Constitution  of  the  United  States,  the  several  States  are  pro- 
hibited from  coining  money,  emitting  bills  of  credit,  or  making  anything 
but  gold  and  silver  coin  a  tender  in  payment  of  debts.    But  no  intention 
can  be  inferred  from  this  to  deny  to  Congress  either  of  these  powers. 

§  91 


LEGAL  TENDER  AND  REGULATION  OF  CURRENCY.   269 

A  perusal  of  the  decisions  in  these  leading  cases  will  dis- 
close the  fact  that  the  members  of  the  courts,  and  the 
attorneys  in  the  causes,  have  not  referred  to  the  same  con- 
Most  of  the  powers  granted  to  Congress  are  described  in  the  eighth  sec- 
tion of  the  first  article ;  the  limitations  intended  to  be  set  to  its  powers, 
so  as  to  exclude  certain  things  which  might  be  taken  to  be  included  in  the 
ninth  section ;  the  tenth  section  is  addressed  to  the  States  only.  This 
section  prohibits  the  States  from  doing  some  things  which  the  United 
States  are  expressly  prohibited  from  doing,  as  well  as  from  doing  some 
things  the  United  States  are  expressly  authorized  to  do,  and  from  doing 
some  things  neither  expressly  granted  nor  expressly  denied  to  the  United 
States.  Congress  and  the  States  equally  are  expressly  prohibited  from 
passing  any  bill  of  attainder,  or  ex  post  facto  law,  or  granting  any  title  of 
nobility.  The  States  are  forbidden,  while  the  President  and  Senate  are 
expressly  authorized,  to  make  treaties.  The  States  are  forbidden,  but 
Congress  is  expressly  authorized,  to  coin  money.  The  States  are  pro- 
hibited from  emitting  bills  of  credit;  but  Congress,  which  is  neither  ex- 
pressly authorized  nor  expressly  forbidden  to  do  so,  has,  as  we  have 
already  seen,  been  held  to  have  the  power  of  emitting  bills  of  credit,  and 
of  making  every  provision  for  their  circulation  as  currency,  short  of  giv- 
ing them  the  quality  of  legal  tender  for  private  debts  —  even  by  those 
who  have  denied  its  authority  to  give  them  this  quality. 

"  It  appears  to  us  to  follow,  as  a  logical  and  necessary  consequence, 
that  Congress  has  the  power  to  issue  the  obligations  of  the  United  States 
in  such  form,  and  to  impress  upon  them  such  qualities  as  currency  for 
the  purchase  of  merchandise,  and  the  payment  of  debts,  as  accords  with 
the  usage  of  sovereign  governments.  The  power,  as  incident  to  the 
power  of  borrowing  money  and  issuing  bills  or  notes  of  the  government 
for  money  borrowed,  of  impressing  upon  those  bills  or  notes  the  quality 
of  being  a  legal  tender  for  the  payment  of  private  debts,  was  a  power 
universally  understood  to  belong  to  sovereignty,  in  Europe  and  America, 
at  the  time  of  the  framing  and  adoption  of  the  constitution  of  the  United 
States.  The  governments  of  Europe,  acting  through  the  monarch  or  the 
legislature,  according  to  the  distribution  of  powers  under  their  respective 
constitutions,  had  and  have'as  sovereign  a  power  of  issuing  paper  money 
as  of  stamping  coin.  *  *  *  The  power  of  issuing  bills  of  credit,  and 
making  them,  at  the  discretion  of  the  legislature,  a  tender  in  payment  of 
private  debts,  had  long  been  exercised  in  this  country  by  the  several 
colonies  and  States;  and  during  the  Revolutionary  war  the  States  upon 
the  recommendation  of  the  congress  of  the  confederation  had  made  the 
bills  issued  by  Congress  a  legal  tender.  See  Craig  ».  Missouri,  4  Pet. 
35,  453;  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257,  313,  334,  336;  Legal 
Tender  Cases,  12  Wall.  557,  558,  622.  The  exercise  of  this  power  not 
being  prohibited  to  Congress  by  the  constitution,  it  is  included  in  the 

§    91 


270  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

stitutional  provision  for  the  authority  to  make  the  treasury 
notes  legal  tender.  Some  have  claimed  it  to  be  a  power, 

power  expressly  granted  to  borrow  money  on  the  credit  of  the  United 
States. 

"  This  position  is  fortified  by  the  fact  that  Congress  is  vested  with  the 
exclusive  exercise  of  the  analogous  power  of  coining  money,  and  regu- 
lating the  value  of  domestic  and  foreign  coin,  and  also  with  the  para- 
mount power  of  regulating  foreign  and  interstate  commerce.  Under 
the  power  to  borrow  money  on  the  credit  of  the  United  States,  and  to 
issue  circulating  notes  for  the  money  borrowed,  its  power  to  define  the 
quality  and  force  of  those  notes  as  currency  is  as  broad  as  the  like  power 
over  a  metallic  currency  under  the  power  to  coin  money  and  to  regulate 
the  value  thereof.  Under  the  two  powers,  taken  together,  Congress  is 
authorized  to  establish  a  national  currency,  either  in  coin  or  in  paper, 
and  to  make  that  currency  lawful  money  for  all  purposes,  as  regards  the 
national  government  or  private  individuals. 

"  The  power  of  making  the  notes  of  the  United  States  a  legal  tender  in 
payment  of  private  debts,  being  included  in  the  power  to  borrow  money 
and  to  provide  a  national  currency,  is  not  defeated  or  restricted  by  the 
fact  that  its  exercise  may  affect  the  value  of  private  contracts.  If,  upon 
a  just  and  fair  interpretation  of  the  whole  constitution,  a  particular  power 
or  authority  appears  to  be  vested  in  Congress,  it  is  no.constitutional  ob- 
jection to  its  existence,  or  to  its  exercise,  that  the  property  or  the  con- 
tracts of  individuals  may  be  incidentally  affected."  *  *  *  "So,  under 
the  power  to  coin  money  and  to  regulate  its  value,  Congress  may  (as  it 
did  with  regard  to  gold  by  the  act  of  June  28,  1834,  ch.  95,  and  with  re- 
gard to  silver  by  act  of  Feb.  28,  1878,  ch.  20),  issue  coins  of  the  same 
denomination  as  those  already  current  by  law,  but  of  less  intrinsic  value 
than  those,  by  reason  of  containing  a  less  weight  of  the  precious  metals, 
and  thereby  enable  debtors  to  discharge  their  debts  by  the  payment 
of  coins  of  less  than  the  real  value.  A  contract  to  pay  a  certain  sum 
in  money  without  any  stipulation  as  to  the  kind  of  money  in  which  it  shall 
be  paid,  may  always  be  satisfied  by  payment  of  that  sum  in  any  currency 
which  is  lawful  money  at  the  place  and  time  at  which  payment  is  to  be 
made.  1  Hale  P.  C.  192, 194;  Bac.  Abr.  Tender,  B.  2;  Pothier,  Contract 
of  Sale,  No.  416;  Pardessus,  Droit  Commercial,  No.  204,  205;  Searight 
v.  Calbraith,  4  Dall.  324.  As  observed  by  Mr.  Justice  Strong  in  deliver- 
ing the  opinion  of  the  court  in  the  Legal  Tender  Cases, '  every  contract  for 
the  payment  of  money,  simply,  is  necessarily  subject  to  the  constitutional 
power  of  the  government  over  the  currency,  whatever  that  power  may 
be,  and  the  obligation  of  the  parties  is,  therefore,  assumed  with  reference 
to  that  power.' 

"  Congress,  as  the  legislature  of  a  sovereign  nation,  being  expressly 
empowered  by  the  Constitution « to  lay  and  collect  taxes,  to  pay  the  debts 
and  provide  for  the  common  defense  and  general  welfare  of  the  United 
§  91 


LEGAL  TENDER  AND  REGULATION  OF  CURRENCY.   271 

implied  from  the  power  to  levy  and  carry  on  war,  others 
refer  it  to  the  power  to  borrow  money,  etc.  If  the  power 

States,'  and  '  to  borrow  money  on  the  credit  of  the  United  States,'  and 
'to  coin  money  and  regulate  the  value  thereof  and  of  foreign  coin;  '  and 
being  clearly  authorized,  as  incidental  to  the  exorcise  of  those  great 
powers,  to  emit  bills  of  credit,  to  charter  national  banks,  and  to  provide 
a  national  currency  for  the  whole  people,  in  the  form  of  coin,  treasury 
notes  and  national  bank  bills ;  and  the  power  to  make  the  notes  of  the 
government  a  legal  tender  in  payment  of  private  debts  being  one  of  the 
powers  belonging  to  sovereignty  in  other  civilized  nations,  and  not  ex- 
pressly withheld  from  Congress  by  the  constitution;  we  are  irresistibly 
impelled  to  the  conclusion  that  the  Impressing  upon  the  treasury  notes  of 
the  United  States  the  quality  of  being  a  legal  tender  in  payment  of  pri- 
vate debts  is  an  appropriate  means,  conducive  and  plainly  adapted  to 
the  execution  of  the  undoubted  powers  of  Congress,  consistent  with  the 
letter  and  spirit  of  the  constitution,  and,  therefore,  within  the  meaning 
of  that  instrument,  '  necessary  and  proper  for  carrying  into  execution 
the  powers  vested  by  this  constitution  in  the  government  of  the  United 
States.' 

"  Such  being  our  conclusion  in  matter  of  law,  the  question  whether 
at  any  particular  time,  in  war  or  in  peace,  the  exigency  is  such,  by  rea- 
son of  unusual  and  pressing  demands  on  the  resources  of  the  govern- 
ment, or  of  the  inadequacy  of  the  supply  of  gold  and  silver  coin,  to 
furnish  the  currency  needed  for  the  uses  of  the  government  and  of  the 
people,  that  it  is,  as  matter  of  fact,  wise  and  expedient  to  resort  to  this 
measure  is  a  political  question,  to  be  determined  by  Congress  when  the 
question  of  exigency  arises,  and  not  a  judicial  question,  to  be  afterwards 
passed  upon  by  the  courts."  Opinion  of  court  by  J.  Gray,  in  Juillard  v. 
Greenman,  110  U.  S.  421. 

''  It  must  be  evident,  however,  upon  reflection,  that  if  there  were  any 
power  in  the  government  of  the  United  States  to  impart  the  quality  of 
legal  tender  to  its  promissory  notes,  it  was  for  Congress  to  determine 
when  the  necessity  for  its  exercise  existed ;  that  war  merely  increased  the 
urgency  for  money;  it  did  not  add  to  the  powers  of  the  government  nor 
change  their  nature;  that  if  the  power  exists  it  might  be  equally  exer- 
cised when  a  loan  was  made  to  meet  ordinary  expenses  in  time  of  peace, 
as  when  vast  sums  were  needed  to  support  an  army  or  navy  in  time  of 
war.  The  wants  of  the  government  could  never  be  the  measure  of  its 
powers.  But  in  the  excitement  and  apprehensions  of  the  war  these  con- 
siderations were  unheeded;  the  measure  was  passed  as  one  of  overruling 
necessity  in  a  perilous  crisis  of  the  country.  Now,  it  is  no  longer  advo- 
cated as  one  of  necessity,  but  as  one  that  may  be  adopted  at  any  time. 
Never  before  was  it  contended  by  any  jurist  or  commentator  on  the  con- 
stitution that  the  government,  in  full  receipt  of  ample  income,  with  a 
treasury  overflowing,  with  more  money  on  hand  than  it  knows  what  to  do 

§  91 


272  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

to  m;ike  the  treasury  notes  legal  tender  cannot  be  shown  to 
be  prohibited  by  the  United  States  constitution,  then  there 

with,  could  issue  paper  money  as  a  legal  tender.  What  was  in  1862 
called  '  the  medicine  of  the  constitution  '  [by  Sumner],  has  now  become 
its  daily  bread.  So  it  always  happens  that  whenever  a  wrong  principle 
of  conduct,  political  or  personal,  is  adopted  on  the  plea  of  necessity,  it 
will  afterwards  be  followed  on  a  plea  of  convenience. 

"  The  advocates  of  the  measure  have  not  been  consistent  in  the  desig- 
nation of  the  power  upon  which  they  have  supported  its  validity,  some 
placing  it  on  the  power  to  borrow  money,  some  on  the  coining  power ; 
and  some  have  claimed  it  as  an  incident  to  the  general  powers  of  the 
government.  In  the  present  case  it  is  placed  by  the  court  upon  the 
power  to  borrow  money,  and  the  alleged  sovereignty  of  the  United  States 
over  the  currency.  It  is  assumed  that  this  power,  when  exercised  by 
the  government,  is  something  different  from  what  it  is  when  exercised 
by  corporations  or  individuals,  and  that  the  government  has,  by  the  legal 
tender  provision,  the  power  to  enforce  loans  of  money  because  the  sover- 
eign governments  of  European  countries  have  claimed  and  exercised  such 
power. 

*  *  *  «  As  to  the  terms  to  borrow  money,  where,  I  would  ask,  does 
the  court  find  any  authority  for  giving  to  them  a  different  interpretation 
in  the  constitution  from  what  they  receive,  when  used  in  other  instru- 
ments, as  in  the  charters  of  municipal  bodies  or  of  private  corporations, 
or  in  the  contracts  of  individuals?  They  are  not  ambiguous;  they  have 
a  well-settled  meaning  in  other  instruments.  If  the  courts  may  change 
that  in  the  constitution,  so  it  may  the  meaning  of  all  other  clauses; 
and  the  powers  which  the  government  may  exercise  will  be  found  de- 
clared, not  by  plain  words  in  the  organic  law,  but  by  words  of  a  new 
significance  resting  in  the  minds  of  the  judges.  Until  some  authority 
beyond  the  alleged  claim  and  practice  of  the  sovereign  governments  of 
Europe  be  produced,  I  must  believe  that  the  terms  have  the  same  mean- 
ing in  all  instruments  wherever  they  are  used;  that  they  mean  a  power 
only  to  contract  for  a  loan  of  money,  upon  considerations  to  be  agreed 
upon  between  the  parties.  The  conditions  of  the  loan,  or  whether  any 
particular  security  shall  be  given  to  the  lenders,  are  matters  of  arrange- 
ment between  the  parties,  they  do  not  concern  any  one  else.  They  do 
not  imply  that  the  borrower  can  give  to  his  promise  to  refund  the  money, 
any  security  to  the  lender  outside  of  the  property  or  rights  which  he  pos- 
sesses. The  transaction  is  completed  when  the  lender  parts  with  his 
money,  and  the  borrower  gives  his  promise  to  pay  at  the  time  and  in  the 
manner  and  with  the  securities  agreed  upon.  Whatever  stipulations  may 
be  made  to  add  to  the  value  of  the  promises  or  to  secure  its  fulfillment, 
must  necessarily  be  limited  to  the  property  rights  and  privileges  which 
the  borrower  possesses,  whether  he  can  add  to  his  promises  any  ele- 
ment which  will  induce  others  to  receive  them  beyond  the  security  which 
§  91 


LEGAL  TENDER  AND  REGULATION  OF  CURRENCY.   273 

would  be  very  little  difficulty  in  determining  the  power  of 
the  government  in  the  premises.  The  power  to  make  and 

he  gives  for  their  payment,  depends  upon  his  promise  to  control  such 
element.  If  he  has  a  right  to  put  a  limitation  upon  the  use  of  other 
persons'  property,  or  to  enforce  an  exaction  of  some  benefit  from  them, 
he  may  give  such  privilege  to  the  lender;  but  if  he  has  no  right  thus  to 
interfere  with  the  property  or  possessions  of  others,  of  course  he  can 
give  none.  It  will  hardly  be  pretended  that  the  government  of  the  United 
States  has  any  power  to  enter  into  any  engagement  that,  as  security  for  its 
notes,  the  lender  shall  have  special  privileges  with  respect  to  the  visible 
property  of  others,  shall  be  able  to  occupy  a  portion  of  their  lands  or  their 
houses,  and  thus  interfere  with  the  possession  and  use  of  their  property. 
If  the  government  cannot  do  that,  how  can  it  step  in  and  say,  as  a  condi- 
tion of  loaning  money,  that  the  lender  shall  have  a  right  to  interfere  with 
contracts  between  private  parties?  A  large  proportion  of  the  property 
of  the  world  exists  in  contracts  and  the  government  has  no  more  right 
to  deprive  one  of  their  value  by  legislation  operating  directly  upon  them 
than  it  has  a  right  to  deprive  one  of  the  value  of  any  visible  and  taxable 
property. 

"  No  ose,  I  think,  will  pretend  that  individuals  or  corporations  pos- 
sess the  power  to  impart  to  their  evidences  of  indebtedness  any  quality 
by  which  the  holder  will  be  able  to  affect  the  contracts  of  other  parties, 
strangers  to  the  loan;  nor  would  any  one  pretend  that  Congress  pos 
sesses  the  power  to  impart  any  one  quality  to  the  notes  of  the  United 
States,  except  from  the  clause  authorizing  it  to  make  laws  necessary  and 
proper  to  the  execution  of  its  powers.  That  clause,  however,  does  not 
enlarge  the  expressly  designated  powers ;  it  merely  states  what  Congress 
could  have  done  without  its  insertion  in  the  constitution.  Without  it 
Congress  could  have  adopted  any  appropriate  means  to  borrow ;  but  that 
can  only  be  appropriate  for  that  purpose  which  has  some  relation  of 
fitness  to  the  end,  which  has  respect  to  the  terms  essential  to  the  con- 
tract, or  to  the  securities  which  the  borrower  may  furnish  for  the  repay- 
ment of  the  loan.  The  quality  of  legal  tender  does  not  touch  the  terms 
of  the  contract;  that  is  complete  without  it;  nor  does  it  stand  as  a 
security  for  the  loan,  for  a  security  is  a  thing  pledged  over  which  the 
borrower  has  some  control,  or  in  which  he  holds  some  interest. 

"  The  argument  presented  by  the  advocates  of  legal  tender  is,  in  sub- 
stance this:  The  object  of  borrowing  is  to  raise  funds,  the  addition  of 
the  quality  of  legal  tender  to  the  notes  of  the  government  will  induce 
parties  to  take  them,  and  funds  will  thereby  be  more  readily  loaned. 
But  the  same  thing  may  be  said  of  the  addition  of  any  other  quality 
•which  would  give  to  the  holder  of  the  notes  some  advantage  over  the 
property  of  others,  as,  for  instance,  that  the  notes  should  serve  as  a 
pass  on  the  public  conveyances  of  the  country,  or  as  a  ticket  to  places 
of  amusement,  or  should  exempt  his  property  from  State  and  municipal 

18  §  91 


274  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

regulate  legal  tender  being  denied  by  the  United  States 
constitution  to  the  States,  the  power  must  be  exercised,  if 

taxation  or  entitle  him  to  the  free  use  of  the  telegraph  lines,  or  to  a 
percentage  from  the  revenues  of  private  corporations.  The  same  con- 
sequence, a  ready  acceptance  of  the  notes,  would  follow;  and  yet  no  one 
would  pretend  that  the  addition  of  privileges  of  this  kind  with  respect 
to  the  property  of  others,  over  which  the  borrower  has  no  control, 
would  be  in  any  sense  an  appropriate  measure  to  the  execution  of  the 
power  to  borrow. 

it  *  *  *  The  power  vested  in  Congress  to  coin  money  does  not  in  my 
judgment  fortify  the  position  of  the  court  as  its  opinion  affirms.  So  far 
from  deducing  from  that  power  any  authority  to  impress  the  notes  of 
the  government  with  the  quality  of  legal  tender,  its  existence  seems  to 
me  inconsistent  with  a  power  to  make  anything  but  coin  a  legal  tender. 
The  meaning  of  the  terms  '  to  coin  money '  is  not  at  all  doubtful.  It 
is  to  mould  metallic  substance  into  forms  convenient  for  circulation 
and  to  stamp  them  with  the  impress  of  government  authority  indicating 
their  value  with  reference  to  the  unit  of  value  established  by  law.  Coins 
are  pieces  of  metal  of  definite  weight  and  value,  stamped  such  by  the 
authority  of  the  government. 

"  *  *  *  The  clause  to  coin  money  must  be  read  in  connection  with 
the  prohibition  upon  the  States  to  make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts.  The  two  taken  together  clearly  show 
that  the  coins  to  be  fabricated  under  the  authority  of  the  general  govern- 
ment, and  as  such  to  be  a  legal  tender  for  debts,  are  to  be  composed 
principally,  if  not  entirely,  of  the  metals  of  gold  and  silver.  Coins  of 
such  metals  are  necessarily  a  legal  tender  to  the  amount  of  their  respec- 
tive values  without  any  legislative  enactment,  and  the  statutes  of  the 
United  States  providing  that  they  shall  be  such  tender  is  only  declaratory 
of  their  effect  when  offered  in  payment.  When  the  constitution  says, 
therefore,  that  Congress  shall  have  the  power  to  coin  money,  interpret- 
ing that  clause  with  the  prohibition  upon  the  States,  it  says  it  shall  have 
the  *  power  to  make  coins  of  the  precious  metals  a  legal  tender,  for  that 
alone  which  is  money  can  be  a  legal  tender.  If  this  be  the  true  import 
of  the  language,  nothing  else  can  be  made  a  legal  tender.  We  all  know 
that  the  value  of  the  notes  of  the  government  in  the  market,  and  in  the 
commercial  world  generally,  depends  upon  their  convertibility  on  de 
mand  into  coin;  and  as  confidence  in  such  convertibility  increases  or 
diminishes,  so  does  the  exchangeable  value  of  the  notes  vary.  So  far 
from  becoming  themselves  standard  of  value  by  reason  of  the  legislative 
declaration  to  that  effect,  their  own  value  is  measured  by  the  facility  with 
which  they  can  be  exchanged  into  that  which  alone  is  regarded  as  money 
by  the  commercial  world.  They  are  promises  of  money,  but  they  are  not 
money  in  the  sense  of  the  constitution.  *  *  *  Now,  to  coin  money 
is,  as  I  have  said,  to  make  coins  out  of  metallic  substances,  and  the  only 
§  91 


LEGAL  TENDER  AND  REGULATION  OF  CURRENCY.   275 

at  all,  by  the  United  States  government;  and  the  United 
States  government  can  exercise  it,  if  the  power  is  not  pro- 
hibited by  the  constitution  altogether,  even  though  it  is  not 
expressly  or  impliedly  delegated  to  the  general  government, 
at  least  if  the  position  elsewhere  taken  l  in  respect  to  the 
powers  of  the  United  States  be  correct. 

But  it  is  my  opinion  that,  while  the  constitution  of  the 
United  States  does  not  prohibit  Congress  from  making  any 
other  coins  than  gold  and  silver,  legal  tender,  it  does  prohibit 
it  from  giving  the  character  of  legal  tender  to  the  United 
States  treasury  notes,  or  to  anything  else,  which  does  not 
have  and  pass  for,  its  intrinsic  value.  When  gold  or  silver, 
or  any  other  article  of  value  is  coined  and  is  made  a  legal 
tender  for  the  payment  of  all  debts,  at  its  true  value,  it  is 
a  very  reasonable  exercise  of  police  power  ;  for  no  one  is 
deprived  of  his  property  against  his  will  and  without  due  pro- 
cess of  hiw.  It  is  merely  a  determination  by  law  what  coin 
is  genuine,  and  which,  therefore,  was  bargained  for,  by  the 
parties  to  the  contract.  And  when  the  value  of  the  metal 
is  inclined  to  be  slightly  variable  from  time  to  time,  as  in 
the  case  of  silver,  relative  to  gold,  the  establishment  of  a 
uniform  value,  when  justly  made,  is  likewise  no  unreasonable 
regulation.  But  if  a  money  of  a  given  denomination  should 
be  coined,  of  less  value  than  existing  coins  of  the  same  de- 
nomination, and  the  people  were  required  to  take  them  at 
their  nominal  value,  it  would  be  a  fraud  upon  the  people, 
and  I  can  see  no  reason  why  such  a  law  should  not  be  de- 
clared unconstitutional.  Congress  has  full  power  to  change 
the  value  of  coins  from  time  to  time,  but  no  law  is  consti- 
tutional which  compels  the  creditor  of  existing  debts  to 

money  the  value  of  which  Congress  can  regulate  is  coined  money,  either 
of  our  mints  or  of  foreign  countries.  It  should  seem,  therefore,  that  to 
borrow  money  is  to  obtain  a  loan  of  coined  money,  that  is,  money  com- 
posed of  precious  metals,  representing  value  in  the  purchase  of  property 
and  payment  of  debts.'  "  Dissenting  opinion  of  J.  Field  in  Juillard  o. 
Greenman,  supra. 
1  See  post,  §  215. 

§  91 


276  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

receive  these  coins  of  less  value,  when  the  parties  contem- 
plated payment  in  the  older  coins  of  a  higher  value,  but  of 
the  same  denomination.  If  Congress  should  coin  a  dollar 
in  gold  or  silver,  whose  intrinsic  value  was  only  eighty- 
five  cents  in  existing  coin,  no  law  can  compel  its  acceptance 
as  equivalent  to  a  dollar,  worth  one  hundred  cents.  The 
enforcement  of  such  a  law  would  deprive  creditors  of  fifteen 
per  cent  of  their  loans,  without  due  process  of  law,  and 
hence  in  violation  of  the  constitution  of  the  United  States. 
Mr.  Justice  Gray  says  in  Juillard  v.  Greenman,1  that  such 
a  law  would  not  infringe  any  constitutional  limitation,  but 
it  seems  to  me  to  be  a  plain  violation  of  the  constitutional 
provision,  that  ««  no  man  shall  be  deprived  of  his  life,  liberty 
or  property,  without  due  process  of  law." 

"  Undoubtedly  Congress  has  power  to  alter  the  value  of 
coins  issued,  either  by  increasing  or  diminishing  the  alloy 
they  contain  ;  so  it  may  alter  at  its  pleasure  their  denomi- 
nations; it  may  hereafter  call  a  dollar  an  eagle,  and  it  may 
call  an  eagle  a  dollar.  But  if  it  be  intended  to  assert  that 
Congress  may  make  the  coins  changed  the  equivalent  of 
those  having  a  greater  value  in  their  previous  condition, 
and  compel  parties  contracting  for  the  latter  to  receive 
coins  with  diminished  value,  I  must  be  permitted  to  deny 
any  such  authority.  Any  such  declaration  on  its  part 
would  be  not  only  inoperative  in  fact  but  a  shameful  disre- 
gard of  its  constitutional  duty.  As  I  said  on  a  former 
occasion  :  '  The  power  to  coin  money  as  declared  by  this 
court  is  a  great  trust  devolved  upon  Congress,  carrying 
with  it  the  duty  of  creating  and  maintaining  a  uniform 
standard  of  value  throughout  the  Union,  and  it  would  be  a 
manifest  abuse  of  the  trust  to  give  to  the  coins  issued  by 
its  authority  any  other  than  their  real  value.  By  debas- 
ing the  coins,  when  once  the  standard  is  fixed,  is  meant 
giving  to  the  coins  by  their  form  and  impress  a  certificate 

i  110  U.  S.  449. 

§   91 


LEGAL  TENDER  AND  REGULATION  OF  CURRENCY.   277 

of  their  having  a  relation  to  that  standard  different  from 
that  which,  in  truth,  they  possess :  in  other  words,  giving 
to  the  coins  a  false  certificate  of  their  value."  l  But  even 
in  such  a  case,  where  a  contract  stipulates  for  the  payment 
of  lawful  money,  and  the  law  should  subsequently  alter  the 
value  of  the  coin,  so  that  the  lawful  money  in  use,  when  the 
contract  is  to  be  performed,  is  of  less  intrinsic  value  ;  and  by 
construction  of  law  the  contract  is  supposed  to  refer  to 
what  is  lawful  money  at  the  time  of  performance ;  there  still 
may  not  be  any  absolutely  arbitrary  deprivation  of  private 
property.  But  when  the  government  undertakes  to  make 
its  own  notes  legal  tender,  a  thing  which  has  no  intrinsic 
value,  whose  value  as  currency  depends  upon  the  public 
credit  of  the  government,  and  rises  and  falls  with  it ;  instead 
of  its  being  the  reasonable  exercise  of  a  police  regulation, 
the  object  of  which  is  to  facilitate  exchange,  and  provide  a 
satisfactory  legal  settlement  of  private  obligations  by  pro- 
viding a  uniform  currency  of  recognized  value,  it  is  an 
arbitrary  taking  of  private  property,  compelling  private 
individuals  to  become  creditors  of  the  government  against 
their  will. 

Making  the  treasury  notes  legal  tender  is  not  induced  by 
any  desire  to  provide  an  easy  method  of  making  legal  set- 
tlements of  obligations,  the  only  legitimate  object  of 
establishing  a  legal  tender  of  any  kind,  but  for  the  purpose 
of  increasing  the  revenue  of  the  government.  The  Su- 
preme Court,  in  the  opinion  of  Justice  Gray,  freely  ac- 
knowledge this  to  be  the  purpose,  and  justify  the  exercise 
of  the  power  by  claiming  it  to  be  implied  from  the  power 
to  borrow  money.  This  clearly  is  unjustifiable  under  any 
known  rules  of  constitutional  construction.  The  acts  of 
1862,  and  1863,  were  justified  as  war  measures,  on  the  plea 
of  necessity.  It  may  be  that  the  government  of  a  country 
in  a  state  of  war,  when  its  very  existence  is  threatened,  may 

1  Dissenting  opinion  of  Justice  Field  in  Juillard  v.  Greenman,  110 
U.  S.  466. 

§    91 


278  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

compel  its  citizens  to  become  creditors  of  the  government. 
It  may  issue  its  treasury  notes,  and  compel  the  creditors  of 
the  government  of  all  classes  to  receive  its  notes  in  pay- 
ment of  its  debts.  It  may,  possibly,  appropriate  to  its  own 
use  the  materials  necessary  for  the  prosecution  of  the  war, 
paying  for  them  at  their  market  value  in  its  treasury 
notes.  It  may  compel  the  citizens  to  serve  in  its  land  and 
naval  forces,  and  be  paid  for  their  services  in  treasury  notes. 
But  it  is  difficult  to  see  how  it  facilitates  the  borrowing  of 
money  by  the  government  to  make  the  treasury  notes  legal 
tender  in  the  payment  of  debts  between  private  parties.  It 
has  been  claimed  that  the  character  of  legal  tender  in- 
creases the  purchasing  power  of  the  treasury  notes.  If 
this  were  so,  it  would  be  a  faint  justification  of  the  law  as 
a  war  measure.  But  it  is  not  true.  The  purchasing  power 
of  a  government  treasury  note,  or  of  any  other  paper  cur- 
rency, depends  upon  the  popular  confidence  in  its  ready 
convertibility  into  specie.  There  is  no  difference  in  the 
purchasing  power  of  treasury  notes  and  national  bank  notes, 
although  one  is  made  legal  tender  and  the  other  is  not. 
Both  are  received  as  the  equivalent  of  a  gold  or  silver  dol- 
lar, because  of  the  confidence  in  the  convertibility  of  both 
of  them  into  coin;  whereas,  during  the  civil  war,  when 
many  brave  and  true  men  were  fearful  of  the  result  and  the 
popular  confidence  in  the  durability  of  the  United  States 
government  was  greatly  shaken ;  although  the  notes  were 
made  legal  tender,  they  sunk  steadily  in  value,  until  at  one 
time,  one  dollar  in  gold  was  the  equivalent  of  two  and  a 
half  dollars  in  treasury  notes.  The  treasury  notes  of  the 
Confederates  States  fared  worse,  because  their  credit  was 
impaired  to  a  greater  degree.  Therefore,  we  must  conclude 
that  even  as  a  war  measure  it  was  unconstitutional  to  make 
the  treasury  notes  legal  tender  in  payment  of  private  debts, 
because  it  did  not  in  any  sense  assist  them  in  borrowing 
money  or  procuring  money's  equivalent,  for  the  prosecu- 
tion of  the  war. 
§  91 


FREE    COINAGE    OF    SILVER.  279 

It  is  probable  that  the  latest  decision  of  the  Supreme 
Court  on  this  subject  will  be  treated  by  the  present  gener- 
ation as  final.  But  inasmuch  as  decisions  of  courts,  even 
of  last  resort,  do  not  make  law,  but  are  merely  evidence, 
albeit  the  highest  and  usually  the  most  reliable  kind  of  evi- 
dence, of  what  the  law  is,  it  is  the  duty  and  within  the 
province  of  jurists  to  combat  error  in  decisions  as  in  any 
other  source  of  law,  even  when  there  is  very  little  hope  of 
a  general  adoption  of  their  views. 

§  92.  Free  coinage  of  silver  and  the  legal  tender 
decisions.  —  In  the  national  election  of  1896,  the  chief 
issue  before  the  people  was  the  declaration  of  the  demo- 
cratic convention  in  favor  of  the  free  and  unlimited  coinage 
of  silver  dollars  at  the  ratio  to  gold  of  16  to  1.  In  a 
treatise  on  constitutional  law,  the  subject  deserves  and  re- 
quires consideration  only  so  far  as  it  involves  a  constitu- 
tional question.  That  it  does  involve  a  serious^constitu- 
tional  question  the  preceding  section,  on  the  power  of  the 
national  government  to  regulate  the  currency,  abundantly 
shows.  The  effort  will  be  made  here  to  show  two  things  : 
first,  that  the  legal  tender  decisions,  which  have  been  fully 
discussed  in  the  preceding  section,  constitute  a  serious 
stumbling  block  to  any  effort  to  overturn  by  a  judicial  veto 
any  act  of  Congress  which  provided  for  the  free  coinage 
of  silver  at  any  other  than  its  true  ratio  of  value  with  gold  ; 
and,  secondly,  that  nevertheless,  it  might  be  reasonably 
expected  that  such  an  act  of  Congress  would  be  declared 
to  be  unconstitutional  by  the  Supreme  Court  of  the  United 
States. 

One  of  the  fundamental  propositions  of  American  con- 
stitutional law,  which  is  expounded  in  many  parts  of  this 
book,  in  application  to  a  variety  of  police  regulations,  is 
that  neither  the  national  nor  the  State  legislatures  have  the 
power  by  enactment  to  take  one  man's  property  and  give 
it  to  another,  even  upon  payment  of  compensation,  except 

$  92 


280  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

in  the  enforcement  of  the  payment  of  debts.  In  the  exer- 
cise of  the  right  of  eminent  domain,  a  private  owner's  land 
may  be  taken  for  devotion  to  public  use,  upon  payment  of 
compensation.  But  it  is  not  possible  for  land  so  condemned 
to  be  devoted  to  the  strictly  private  use  of  another. 

Property  is  defined  as  "  any  thing  or  object  of  value  which 
one  may  acquire  and  own,"  and  one  of  the  commonest 
divisions  of  property  in  the  law  books  is  into  things 
in  possession  and  things  in  action.  Things  in  action,  or, 
to  employ  the  old  Norman-French  term,  choses  in  action, 
include  every  claim  against  another  for  money,  or  money's 
equivalent,  which  can  be  successfully  enforced  in  a  judicial 
action.  It  is  manifest,  therefore,  that  the  constitutions, 
both  national  and  State,  guarantee  one  in  the  secure  pos- 
session of  things  in  action,  as  well  as  of  things  in  possession. 
When  the  National  Bankrupt  Law,  which  cut  off  the 
claims  of  creditors  of  an  insolvent  debtor,  was  claimed  to  be 
a  violation  of  the  right  of  property  in  things  in  action,  it 
was  justified  on  the  ground  that  the  constitution  of  the 
United  States  had  expressly  authorized  the  enactment  of  the 
law,  thereby  making  it  an  express  exception  to  the  ordinary 
constitutional  guaranty  of  protection  to  vested  rights.1 

It  is  probably  not  an  exaggerated  statement  that  three- 
fourths  of  the  private  property  of  the  world  are  things  in 
action,  contracts,  bonds,  notes,  open  accounts,  covenants, 
mortgages,  etc.,  and  the  great  majority  of  these  things  in 
action  are  contracts,  which  call  for  the  payment  of  money. 
It  is  also  probably  true,  that  the  overwhelming  majority  of 
these  current  monetary  obligations  were  created  in  this 
country  since  1873,  when  Congress  demonetized  silver,  and 
put  the  country  distinctly  on  a  gold  basis.  These  current 
monetary  obligations  were,  therefore,  made  on  a  gold  basis: 
i.  e.,  when  the  bond  or  note,  called  for  the  payment  of  one 
thousand  dollars,  both  debtor  and  creditor  are  conclusively 

1  See  Ogden  v.  Saunders,  12  Wheat.  269. 
§    92 


FREE  COINAGE  OF  SILVER.  281 

presumed  to  have  had  in  contemplation  the  payment  of 
something,  which,  under  the  denominations  of  dollars  and 
cents,  would  have  enabled  them  to  buy  in  the  markets  of 
the  world  the  value  in  goods  of  the  amount  of  gold  which 
was  put  by  the  United  States  Government  into  one  thousand 
gold  dollars.  If  these  parties  had  anticipated  that,  when 
the  debt  fell  due,  the  debtor  could  extinguish  his  debt  of 
one  thousand  dollars  in  gold  by  the  transfer  of  five  or  six 
hundred  gold  dollars'  worth  of  silver  —  which  would  enable 
the  creditor  to  buy  in  the  markets  of  the  world  only  a  little 
more  than  half  the  quantity  of  goods  that  he  could  get  with 
the  one  thousand  gold  dollars,  which  he  had  expected  to 
realize  from  the  contract — the  terms  of  the  contract  would 
certainly  not  have  been  the  same.  Common  sense,  as  well 
as  the  expressed  judicial  opinion  of  this  country  in  analogous 
cases,  with  the  exception  of  the  legal  tender  decisions, 
would  force  us  to  the  conclusion  that  an  act  of  Congress, 
passed  subsequently  to  the  making  of  the  contract,  which 
required  the  creditor  to  take  five  hundred  gold  dollars'  worth 
of  silver,  whether  in  bullion  or  coined  into  silver  dollars  at 
the  ratio  of  sixteen  to  one,  would  have  the  effect  of  taking 
away  from  the  creditor  one-half  of  his  property,  by  reducing 
its  purchasing  power  by  one-half;  and,  that,  for  that  reason, 
such  an  act  of  Congress  was  in  violation  of  the  fifth  amend- 
ment of  the  national  constitution,  which  prohibits  the  taking 
of  private  property  without  due  process  of  law. 

It  might  be  urged  that  the  silver  dollar  of  the  present 
weight  and  fineness  is  already,  and  has  been  since  1878, 
legal  tender  in  payment  of  all  debts,  public  and  private  ; 
and  that  the  free  coinage  of  silver  dollars  at  the  same  ratio 
would  not  change  the  rights  of  parties  to  existing  private 
contracts.  To  this  contention  the  answer  may  be  given 
that,  inasmuch  as  silver  is  coined,  under  the  act  of  1878, 
and  subsequent  acts,  in  limited  quantities  only,  the  silver 
dollar  has  the  character  and  effect  of  subsidiary  coin,  par- 
ticularly since  the  government  has  uniformly  given  to  the 

§  92 


282  REGULATION   OF   TRADES    AND   OCCUPATIONS. 

holder  of  treasury  notes  gold  dollars,  whenever  they  were 
demanded,  and  receive  silver  and  gold  dollars  indiscrim- 
inately, in  payment  of  debts  to  the  government.  In  other 
words,  the  United  States  Government's  guaranty  that  the 
silver  dollar  shall  be  maintained  on  a  parity  with  the  gold 
dollar,  substantially  makes  the  silver  dollar  as  much  a  sub- 
sidiary coin  as  the  fractional  currency,  whose  intrinsic  value 
is  below  the  nominal  value.  This  guaranty  of  the  govern- 
ment alone  maintains  this  parity ;  but  if  the  guaranty  were 
to  be  made  worthless,  as  it  would  by  a  provision  for  the 
free  coinage  of  silver,  the  gold  would  disappear  from  circula- 
tion, as  it  did  in  1834,  and  the  country  would  at  once  settle 
down  to  a  silver  basis,  resulting  in  a  practical  repudiation  of 
about  fifty  per  centum  of  existing  obligations,  unless  the 
United  States  Supreme  Court  intervened  with  the  declaration 
that  this  is  a  taking  of  private  property  without  due  process 
of  law,  which  is  inhibited  by  the  national  constitution. 

It  is  a  common  rule  of  private  conduct,  that  where  one, 
even  for  a  laudable  purpose,  does  an  act,  which  is  in  viola- 
tion of  a  fundamental  principle  of  ethics  and  justice,  the 
incidental  injurious  consequences  far  outweigh  in  effect  the 
good,  or  supposed  good,  which  is  immediately  attained. 
And  this  is  strikingly  true  with  the  declarations  by  the 
Supreme  Court  of  the  United  States  that  Congress  had  the 
power  to  declare  the  United  States  treasury  notes  to  be 
legal  tender  in  payment  of  public  and  private  debts.  Those, 
who  are  not  familiar  with  the  opinions,  filed  in  these  cases, 
will  be  surprised  to  learn  that  Justices  Strong  and  Gray,  in 
delivering  the  opinion  for  a  majority  of  the  court,  in  12 
Wallace,  457,  and  110  U.  S.  449,  have  plainly  asserted  the 
power  of  Congress  to  debase  the  currency,  and  make  the 
debased  currency  legal  tender  in  payment  of  existing  obli- 
gations. In  the  legal  tender  cases,1  the  court  say  :  — 

"  The  obligation  of  a  contract  to  pay  money  is  to  pay 

1  12  Wall.  457. 
§    92 


FREE    COINAGE    OF    SILVER.  283 

that  which  the  law  shall  recognize  as  money  when  payment 
is  to  be  made.  *  *  *  No  one  ever  doubted  that  a  debt 
of  $1,000,  contracted  before  1834,  could  be  paid  by  100 
eagles  coined  after  that  year,  though  they  contained  no 
more  gold  than  94  eagles  such  as  were  coined  when  the 
contract  was  made,  and  this  not  because  of  the  intrinsic  value 
of  the  coin,  but  because  of  its  legal  value.  *  *  *  Every 
contract  for  the  payment  of  money  simply,  is  necessarily 
subject  to  the  constitutional  power  of  the  government  over 
the  currency,  whatever  that  power  may  be,  and  the  obli- 
gation of  the  parties  is  therefore  assumed  with  reference 
to  that  power.  *  *  *  It  is  thus  clear  that  the  power 
of  Congress  may  be  exercised,  though  the  effect  of  such 
exercise  may  be  in  one  case  to  annul  and  in  other  cases  to 
impair  the  obligation  of  contracts." 

In  the  same  case,  Mr.  Justice  Bradley  says:  "  The  mere 
fact  that  the  value  of  debts  may  be  depreciated  by  legal 
tender  laws  is  not  conclusive  against  their  validity."  And 
in  Juillard  v.  Greenman,1  Mr.  Justice  Gray,  in  delivering 
the  opinion  of  the  court,  said :  — 

"  So,  under  the  power  to  coin  money  and  to  regulate  its 
value,  Congress  may  (as  it  did  with  regard  to  gold  by  the 
act  of  June  28,  1834,  and  with  regard  to  silver  by  the  act 
of  February  28,  1878,  ch.  20)  issue  coins  of  the  same  de- 
nomination as  those  already  current  by  law,  but  of  less 
intrinsic  value,  or  containing  less  weight  of  the  precious 
metals,  and  thereby  enable  debtors  to  discharge  their  debts 
by  the  payment  of  coins  of  less  value." 

Notwithstanding  these  very  plain  assertions  of  the  power 
of  Congress  to  debase  the  currency,  by  the  modern  imita- 
tion of  the  medieval  practice  of  clipping  coins,  I  will  make 
the  effort  to  prove  that  the  opinions  of  Justices  Strong, 
Bradley  and  Gray  are  not  indicative  of  what  would  be  the 
judgment  of  the  Supreme  Court  on  the  constitutionality  of 
a  free  coinage  silver  act. 

•110  U.S.  444.  ^ 


284  REGULATION   OF   TRADES    AND   OCCUPATIONS. 

First.  The  opinion  as  to  the  power  of  Congress  to  de- 
base the  currency  -was  only  a  dictum,  and  appears  in  cases 
which  hold  that  the  Congress  could  make  United  States 
treasury  notes  legal  tender.  While  I  believe  that  the  court 
erred  in  reaching  that  conclusion,  the  making  of  a  legal 
tender  out  of  treasury  notes  was  only  an  incidental  debase- 
ment of  the  currency,  inasmuch  as  the  notes  were  payable 
in  coin,  and  the  discount  in  the  current  valuation  of  the 
notes,  due  to  the  stress  of  war  and  its  subsequent  effect  on 
the  credit  of  the  government,  was  only  temporary.  I  am 
also  fully  persuaded  that  the  legal  tender  decisions  would 
never  have  been  delivered,  had  it  not  been  that  a  very 
large  and  powerful  class  of  people,  who  had  made  debts  in 
reliance  upon  the  legality  of  the  legal  tender  acts  of  1863, 
would  have  been  seriously  injured,  if  not  ruined,  by  a  de- 
cision of  the  court,  that  the  treasury  notes  were  not  legal 
tender.  In  the  beginning  of  his  opinion  in  12  Wallace, 
457,  Mr.  Justice  Strong  said:  — 

**  It  is  also  clear  that,  if  we  hold  the  acts  invalid  as 
applicable  to  debts  incurred  or  transactions  which  have 
taken  place  since  their  enactment  [the  legal  tender  acts  of 
1863],  our  decision  must  cause  throughout  the  country  great 
business  derangements,  widespread  distress  and  the  rankest 
injustice.  The  debts,  which  have  been  contracted  since 
February  25,  1862,  constitute  by  far  the  greatest  portion 
of  the  existing  indebtedness  of  the  country.  They  have 
been  contracted  in  view  of  Congress  declaring  treasury 
notes  a  legal  tender,  and  in  reliance  upon  that  declaration. 
Men  have  bought  and  sold,  borrowed  and  lent,  and  assumed 
every  variety  of  obligations  contemplating  that  payment 
might  be  made  with  such  notes.  Indeed,  legal  tender  treas- 
ury notes  have  been  the  universal  measure  of  value.  If 
now,  by  our  decision,  it  be  established  that  these  debts 
and  obligations  can  be  discharged  only  by  gold  coin ;  if, 
contrary  to  the  expectation  of  all  parties  to  these  contracts, 
legal  tender  notes  are  rendered  unavailable,  the  government 
§  92 


FREE    COINAGE    OF    SILVER.  285 

has  become  the  instrument  of  the  grossest  injustice;  all 
debtors  are  loaded  with  an  obligation  it  was  never  contem- 
plated they  should  assume;  a  large  percentage  is  added  to 
every  debt,  and  such  must  become  the  demand  for  gold  to 
satisfy  contracts,  that  ruinous  sacrifices,  general  distress  and 
bankruptcy  may  be  expected." 

Can  there  be  much  doubt  that  if  Mr.  Justice  Strong  and 
his  colleagues,  who  sustained  the  constitutionality  of  the 
legal  tender  acts,  were  now  called  upon  to  declare  an  act  of 
Congress  to  be  constitutional,  which  will  compel  creditors 
to  receive  in  payment  of  existing  debts  money  having  only 
one-half  the  purchasing  power  of  the  present  gold  stand- 
ard, they  would  be  just  as  profoundly  impressed  with  "  the 
rank  injustice  "  of  such  an  enactment?  As  the  late  Austin 
Abbott  used  to  say,  the  business  of  the  judge  is  to  give  a 
legal  reason  for  the  conclusions  of  common  sense ;  and  I 
may  add  that,  while  the  legal  reason  is  usually  considered 
as  controlling  the  judgment  of  the  court,  the  judgment  is 
really  dictated  by  the  conclusions  of  common  sense.  These 
conclusions  of  common  sense,  rather  than  the  assigned 
legal  reasons,  must  be  considered  in  attempting  to  fore- 
cast the  decision  of  the  same  court  in  analogous  cases.  In 
this  connection  I  make  bold  to  say  that  the  quotation  just 
given  from  the  opinion  of  Mr.  Justice  Strong  is  a  better 
guide  to  the  determination  of  the  social  forces  which 
brought  about  the  legal  tender  decisions  than  the  legal 
reasons  assigned  by  him  and  his  colleagues;  as  well  as  a 
better  index  of  what  the  judgment  of  the  court  would  be 
on  the  constitutionality  of  a  silver  free  coinage  act. 

In  the  legal  tender  cases,  the  debtor  class  was  in  danger 
of  being  subject  to  *'  rank  injustice  "  by  declaring  the 
legal  tender  acts  unconstitutional;  while  under  a  silver 
free  coinage  act  the  creditor  class  would  be  the  sufferers  of 

o 

"  rank  injustice,"  if  the  bill  was  held  to  be  constitutional. 

Secondly.  When  the  legal  tender  acts  were  first  passed, 

the  nation  was  in  the  throes  of  a  gigantic  civil  war,  and  the 

«  92 


286  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

permanency  of  the  Union  hung  in  the  balance.  It  was  as  a 
war  measure  that  the  legal  tender  acts  were  first  adopted ; 
and  while,  in  Juillard  v.  Greenman,1  the  necessity  of  claim- 
ing the  power  to  make  treasury  notes  legal  tender,  as  a 
war  measure,  was  not  present,  and  the  court  really  sus- 
tained the  legal  tender  act  of  1878,  which  continued  the 
legal  tender  character  of  treasury  notes  and  provided  for 
their  reissue,  on  the  technical  ground  that,  conceding  to 
the  government  the  power  to  make  its  treasury  notes  legal 
tender,  it  was  a  legislative  and  not  a  judicial  question  when 
it  was  necessary  to  exercise  the  power,  underlying  all  these 
legal  tender  decisions  is  the  profound  though,  in  the  judg- 
ment of  many,  the  mistaken  conviction  that  the  exercise  of 
that  power  in  1863  was  of  immediate  service  to  the  national 
government  in  overthrowing  the  Southern  Confederacy; 
and  that  it  would  be  unwise  to  deny  to  the  government  a 
power  which,  however  dangerous  it  might  be  if  employed 
unwisely,  was  held  to  be  highly  beneficent  in  times  of  great 
emergency.  No  such  special  plea  could  be  urged  in  behalf 
of  the  free  coinage  of  silver.  The  duration  of  the  govern- 
ment is  not  to  be  promoted,  but  rather  endangered,  by 
such  an  enactment.  The  only  end  to  be  attained  by  such 
a  measure,  in  addition  to  the  heavy  percentage  of  repudia- 
tion of  all  existing  obligations,  is  the  speculative  gain  from 
the  establishment  of  a  different  standard  of  valuation  for 
future  contracts.  Such  an  end  would  not  justify  the  gov- 
ernment's interference  with  the  obligations  of  debtors  on 
existing  contracts. 

Thirdly.  The  legal  reason,  which  led  Justices  Strong  and 
Gray  to  the  statement  that  Congress  could  debase  the  cur- 
rency without  violating  any  provision  of  the  United  States 
constitution,  was  based  upon  what  Mr.  Justice  Strong  as- 
serted to  be  an  uncontroverted  and  uncontrovertible  propo- 
sition of  law  that  an  ordinary  contract  to  pay  a  certain 

*  110  U.  S.  421. 

§  92 


FREE    COINAGE    OF    SILVER.  287 

number  of  dollars  "  was  not  a  duty  to  pay  gold  or  silver, 
or  the  kind  of  money  recognized  by  law  at  the  time  when 
the  contract  was  made,  nor  was  it  a  duty  to  pay  money  of 
equal  intrinsic  value  in  the  market.  *  *  *  The  obli- 
gation of  a  contract  to  pay  money  is  to  pay  that  which 
the  law  shall  recognize  as  money  when  payment  is  to  be 
made." 

And  in  Juillard  v.  Greenman,1  Mr.  Justice  Gray  said:  — 
"  A  contract  to  pay  a  certain  sum  in  money,  without  any 
stipulation  as  to  the  kind  of  money  in  which  it  shall  be 
paid,  may  always  be  satisfied  by  payment  of  that  sum  in 
any  currency  which  is  lawful  money  at  the  place  and  time 
at  which  payment  is  to  be  made." 

I  think  it  can  be  demonstrated  that  this  is  not  American 
law,  so  far  as  it  is  claimed  to  involve  the  power  of  the  gov- 
ernment to  debase  the  currency,  and  to  compel  the  existing 
creditor  to  take  in  payment  of  his  existing  claim  a  depreci- 
ated or  debased  currency  at  its  face  value.  The  foreign 
authorities,  which  are  cited  by  these  judges,  need  not  be 
taken  into  consideration ;  because  nowhere  else  in  the  world 
is  a  court  authorized  or  enjoined  to  avoid  a  legislative  act 
on  any  ground  whatever.  When,  however,  we  read  this 
proposition  of  the  law  of  contracts,  in  the  light  of  Faw  v. 
Marsteller,2  cited  by  Mr.  Justice  Strong,  in  support  of  his 
proposition,  that  the  government  can  debase  the  currency 
without  violating  existing  contracts,  we  are  forced  to  the 
conclusion  that  its  only  meaning,  as  a  proposition  of  Ameri- 
can law,  is  that  the  creditor  is  obliged  to  take  in  payment 
of  his  claim,  whatever  is  rightfully  made  legal  tender  at  the 
time  that  the  debt  falls  due.  For  example,  it  is  a  common 
proposition  of  commercial  law  that  a  negotiable  promissory 
note  may  be  made  payable  in  this  country,  calling  for  the 
payment  of  a  sum  of  money  of  a  foreign  denomination,  but 
it  is  actually  payable  in  the  legal  tender  of  this  country, 

1  110  U.  S.  421.  2  2  Cranch,  29. 

§   92 


288  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

unless  otherwise  agreed  upon ;  and  the  amount  in  the  legal 
tender  of  this  country,  which  is  due  on  the  note,  is  com- 
puted from  the  relative  values  of  the  units  of  the  two 
systems  of  coinage.  The  commercial  world  holds,  as  the 
fundamental  unit  of  value,  to  the  purchasing  power  of  the 
denomination.  And  while  the  government  of  the  United 
States  may  vary  the  intrinsic  value  of  its  coins,  and  there- 
with change  their  ratio  of  value  with  foreign  coins,  it  has 
not  the  constitutional  power  to  increase  or  diminish  the 
purchasing  power  of  the  money  called  for  in  settlement  of 
an  existing  contract.  This  seems  to  be  the  irresistible  con- 
clusion from  the  opinion  of  Chief  Justice  Marshall  in  Faw 
v.  Marsteller.1 

During  the  revolutionary  period  of  our  existence  as  a 
nation,  each  of  the  States,  as  well  as  the  Continental  Con- 
gress, had  issued  paper  money  or  treasury  notes,  in  such 
large  sums,  that  this  money  had  become  greatly  depreciated 
in  value,  and  a  proportionate  premium  had  to  be  paid  for 
gold  and  silver.  Although  there  was  a  general  expecta- 
tion that  at  some  time  in  the  future  the  depreciated  paper 
would  be  retired,  and  specie  payment  be  resumed,  most 
contracts  were  made  in  the  expectation  that  they  would  be 
performed  by  payment  in  this  depreciated  currency. 

The  Virginia  Legislature,  along  with  provision  for  re- 
sumption of  specie  payment,  had  established  a  scale  of 
valuation  of  the  depreciated  paper  money  in  specie  at  dif- 
ferent periods  of  its  circulation,  and  declared  that  contracts, 
which  had  been  made  during  the  circulation  of  the  paper 
money,  when  paid  in  specie,  should  be  reduced  in  amount 
to  the  real  value  which  the  paper  money  had  in  specie  at 
the  time  when  the  contract  was  made.  For  example,  a 
contract  calling  for  the  payment  of  $1,000,  made  when  the 
paper  money  was  worth  in  specie  only  fifty  cents  on  the 
dollar,  the  creditor  could  only  recover  $500  in  specie. 

i  2  Cranch,  29. 
5  92 


FREE    COINAGE    OF    SILVER.  289 

In  the  case  of  Faw  v.  Marsteller,  a  deed  of  sale  was  made 
in  1779  of  land  upon  a  perpetual  ground-rent  of  26  pounds 
current  money  of  Virginia.  It  was  con  tended  by  the  grantor' a 
assigns  that  this  contract  did  not  come  within  the  statute, 
because  it  was  a  continuing  contract,  and  that  the  rentals 
falling  due  after  the  resumption  of  specie  payment,  should 
be  construed  as  obligations  arising  after  that  date,  and  that 
these  rentals  should  be  paid  in  full  in  specie.  Chief  Justice 
Marshall  denied  this  claim,  holding  that  the  contract  did 
come  within  the  operation  of  the  statute.  The  Chief  Justice 
said,  continuing: — 

"  It  seems  to  be  the  date  and  not  the  duration  of  the 
contract  which  was  regarded  by  the  Legislature.  The  act 
is  implied  directly  to  the  date  of  contract,  and  the  motive 
for  making  it  was  that  contracts  entered  into  during  the 
circulation  of  paper  money,  ought  in  justice  to  be  discharged 
by  a  sum  different  in  intrinsic  value  from  the  nominal  sum 
mentioned  in  the  contract,  and  that  when  the  Legislature  re- 
moved the  delusive  standard,  by  which  the  value  of  the  thing 
acquired  had  been  measured,  they  ought  to  provide  that 
justice  should  be  done  to  the  parties ." 

The  Virginia  Legislature  had,  however,  provided  in  the 
act  referred  to,  that  where  the  scale  in  values  proved  in  any 
particular  case  to  work  injustice,  the  courts  were  empowered 
to  make  a  special  inquiry  into  the  value  in  specie  of  the 
claim  in  the  particular  contract,  and  that  this  judgment  of 
the  court  should  determine  the  amount  to  be  paid  in  liquida- 
tion of  the  contract.  Chief  Justice  Marshall  held,  from  the 
evidence  before  him,  that  this  was  one  of  those  extraordi- 
nary cases,  which  were  not  justly  provided  for  by  the  scale 
of  values,  and  ordered  a  special  inquiry  to  determine  the 
annual  rental  value  in  specie  of  the  land  at  the  time  when 
the  land  was  sold.  Surely  the  great  exponent  of  the  sanctity 
of  contracts  would  not  have  rendered  this  decision,  had  he 
believed  in  the  power  of  the  government  to  change  the 
intrinsic  value  of  the  unit  of  money,  and  compel  parties  to 

19  §  92 


290  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

existing  contracts  to  receive  in  payment  the  debased  coin  at 
its  face  value.  In  the  light  of  the  facts  of  this  case,  and 
the  specific  judgment  of  the  court,  the  statement  of  Chief 
Justice  Marshall  in  his  opinion  in  the  same  case,1  which  is 
quoted  by  Mr.  Justice  Strong  in  the  le«ral  tender  cases,  that 
"according  to  the  law  of  contracts  all  moneys  accruing 
under  it,  which  were  not  received  during  the  currency  of 
paper,  would  be  payable  in  such  other  money  as  might  be 
current  at  the  time  of  payment,"  must  be  taken  to  mean 
only  that  the  creditor  cannot  object  to  the  kind  of  money 
offered  in  payment,  because  it  was  not  money  at  the  time 
when  the  contract  was  made. 

The  same  principles  controlled  the  United  States  Supreme 
Court  in  laying  down  the  rule  that  where,  during  the  preva- 
lence of  the  civil  war,  a  note  or  contract  was  made  in  the 
Southern  States  within  the  Confederate  lines,  calling  for  the 
payment  of  a  number  of  dollars,  and  which  remained  unpaid 
at  the  re-establishment  of  peace,  the  sum  payable  in  the 
lawful  money  of  the  United  States  on  such  a  note  must  be 
ascertained  by  the  determination  of  the  value  in  such  money 
of  the  Confederate  currency  at  the  time  and  place,  when  and 
where  such  note  or  contract  was  made.3 

The  fact  that  the  same  court  rendered  these  decisions  at 
the  same  time  that  they  were  deciding  the  legal  tender 
cases,  indisputably  sustains  my  contention  that  the  legal 
tender  cases  are  not  to  be  taken  as  a  judicial  determina- 
tion, that  the  United  States  Government  can  impair  the 
obligation  of  existing  contracts  by  compelling,  in  perform- 
ance of  such  contracts,  the  receipt  of  a  debased  currency 
at  its  face  value. 

Fourthly.  The  dicta  of  these  justices  are  still  further 
weakened  by  their  claim  that  the  United  States  Government 

1  2  Cranch,  29. 

8  See  among  other  cases,  the  Confederate  Note  Cases,  19  Wall.  548; 
Stewart  v.  Salmon.  94  U.  S.  434;  Cook  v.  Lillo,  103  U.  S.  793;   Wilming- 
ton, etc.,  R.  R.  Co.  v.  King,  91  U.  S.  3. 
§    92 


FREE    COINAGE    OF    SILVER.  291 

had  reduced  the  intrinsic  value  of  its  coin,  and  thus  impaired 
the  obligation  of  existing  contracts  in  1834.  The  latter 
half  of  the  proposition  is  not  true. 

Under  the  act  of  1792,  the  silver  dollar  was  established  as 
a  unit  of  value  in  the  ratio  to  gold  of  15  to  1 ;  but  by  1823, 
it  became  very  plain  that  the  true  ratio  was  16  to  1.  As  a 
result  of  this  depreciation  of  silver,  the  gold  passed  out  of 
circulation  and  was  either  sent  to  Europe  or  hoarded  in  this 
country.  Inasmuch  as  both  silver  and  gold  were  legal 
tender,  and  the  debtor  could  pay  his  contracts  in  either 
coin,  he  would  surely  pay  in  the  cheaper  metal.  At  that 
time,  therefore,  this  country  was  on  a  silver  basis,  and  all 
the  existing  contracts  were  made  in  reliance  upon  payment 
in  silver.  The  creditor  gained  nothing,  therefore,  from 
this  relative  appreciation  of  the  gold  dollar.  The  only  one 
who  profited  by  it  was  the  possessor  of  the  gold  dollar,  and 
his  profit  depended  solely  upon  the  extra  quantity  of  gold 
in  the  gold  dollar.  Inasmuch  as  the  country  was  already 
on  a  silver  basis,  in  re-establishing  a  parity  between  the 
two  metals,  Congress  acted  wisely  in  reducing  the  quantity 
of  gold  in  the  gold  dollar,  because  it  was  the  scarcer  coin, 
and  had  already  passed  out  of  active  circulation.  Values 
were  in  nowise  disturbed  by  this  Congressional  enactment ; 
they  would  have  been  if  the  intrinsic  value  of  the  silver 
dollar  had  been  increased,  for  all  contracts  were  then  made 
on  a  silver  basis.  The  situation  is  now  completely 
changed.  We  are  on  a  gold  basis,  and  the  terms  of  all 
contracts  are  determined  by  a  reference  to  the  gold  stand- 
ard. The  remonetization  of  silver  at  a  ratio  which  would 
make  the  silver  dollar  inferior  in  intrinsic  value  to  the  gold 
dollar  would  at  once  take  us  to  the  silver  basis,  and  the 
values  of  all  monetary  obligations  would  be  proportionately 
reduced. 

This  exposition  seems  to  make  clear  that  while  the  legal 
tender  cases  would,  as  prominent  precedents,  have  proved 
stumbling-blocks  in  the  way  of  securing  a  declaration  that 

S  92 


292  REGULATION    OF   TRADES   AND   OCCUPATIONS. 

a  silver  free  coinage  bill  was  unconstitutional,  so  far  as  it 
applied  to  existing  contracts ;  such  a  declaration  might 
have  been  confidently  expected,  if  the  court  had  been  called 
to  pass  upon  the  question. 

§  93.  Legislative  restraint  of  importations  —  Protec- 
tive tariffs.  —  The  reader,  who  has  carefully  followed  the 
line  of  argument  adopted,  and  the  tests  applied,  in  each 
case  of  the  exercise  of  police  power,  will  scarcely  need  any 
special  elaboration  of  the  grounds  upon  which  it  is  held  to 
be  a  violation  of  civil  liberty  for  the  government  to  do  any 
act  which  is  intended  to  and  does  restrain  importations. 
Whatever  may  be  thought  of  tbe  justice  of  an  import  tax, 
in  the  abstract,  the  United  States  constitution  expressly 
grants  to  the  United  States  government  the  power  to  lay 
such  a  tax  upon  all  importations.  A  tariff  for  revenue, 
therefore,  comes  within  the  legitimate  exercise  of  police 
power.  It  is  one  mode  of  taxation.  But  no  claim  can  be 
successfully  made  to  an  express  or  implied  power  to  es- 
tablish a  tariff  whose  object  is  to  restrain  importations  for 
the  protection  of  competing  home  industries.  The  only  pro- 
vision on  the  subject  is  article  1,  section  8,  where  it  is 
provided  that  Congress  shall  have  power  **  to  lay  and  col- 
lect taxes,  duties,  imposts,  and  excises  to  pay  the  debts 
and  provide  for  the  common  defense  and  general  welfare  of 
the  United  States."  Here  is  found  only  an  authority  to 
establish  a  tariff  for  revenue.  In  the  days  when  the  con- 
stitutionality of  tariff  laws  used  to  be  discussed,  it  appears 
to  have  been  conceded  by  the  abler  statesmen,  that  there 
was  no  authority  in  the  constitution  for  creating  a  tariff  for 
protection,  and  the  claim  was  usually  made  that  they  may 
establish  "  a  tariff  for  revenue  with  incidental  protection." 
This  is  clearly  an  inconsistency.  A  tariff  for  revenue, 
when  carried  to  its  logical  extreme,  would  involve  the  in- 
stitution of  a  policy,  which  would  encourage  importations, 
and  discourage  home  manufactures,  for  the  greater  the  im- 
S  93 


LEGISLATIVE    RESTRAINT    OF    IMPORTATIONS.  293 

ports  the  larger  will  be  the  revenue.  On  the  other  hand, 
the  principle  of  protection,  when  pushed  to  its  extremity, 
would  restrain  importations,  and,  if  possible,  the  tariff 
would  be  so  constructed  that  there  would  be  no  imports, 
and  hence  no  revenue.  While  a  tariff  for  revenue  so  con" 
structed  as  to  operate  as  an  intentional  restraint  upon  home 
industries  would  not  be  just  or  wise,  all  tariffs  should  be 
constructed  with  the  single  object  in  view  of  raising  revenue, 
and  so  far  as  there  is  any  attempt  to  afford  the  so-called  in- 
cidental protection,  Congress  exceeds  the  express  power 
to  lay  imposts. 

But,  in  accordance  with  the  rule  of  constitutional  con- 
struction advocated  and  explained  in  a  subsequent  section,1 
since  the  States  are  denied  the  power  to  lay  imposts  or 
duties  upon  imports,  "  without  the  consent  of  Congress," 
'*  except  what  may  be  absolutely  necessary  for  executing  its 
inspection  laws,"  2  we  claim  that  Congress  may,  without 
express  grant  of  such  a  power,  lay  imposts  for  the  pur- 
poses of  protection,  if  the  constitution  does  not  prohibit  it. 
But  we  also  claim  that  a  tariff  for  protection  is  prohibited  by 
the  constitution,  not  in  express  terms,  but  by  the  general 
clause  which  provides  that  no  one  shall  "  be  deprived  of 
life,  liberty  or  property,  without  due  process  of  law."  3  It 
would  be  as  constitutional  for  a  State  to  prohibit  one  class 
of  citizens  from  trading  with  another,  as  it  is  for  the  United 
States  to  prohibit,  totally  or  partially,  the  dealing  of  citi- 
zens with  foreign  countries.  It  is  a  part  of  the  civil  liberty 
of  a  citizen  of  a  constitutional  State  to  be  permitted  to  have 
business  relations  with  whom  he  pleases.  Even  though  a 
protective  tariff  does  not  compel  the  consumer  to  pay  more 
for  the  home  products  than  he  would  have  to  pay  for  the 

1  See  post,  Chapter  XVI. 

2  U.  S.  Cons.,  art.  I.,  §  10. 

3  U.  S.   Const.  Amend.,   art.  6.     The   platform  of    the   Democratic 
National  Convention  of  1892  contains  a  similar  declaration  as  to  the  con- 
stitutionality of  a  tariff  law  for  protection. 

6   93 


294  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

foreign  articles  in  me  absence  of  a  protective  tariff,  and 
the  home  products  were  of  the  same  value  and  intrinsic 
merit,  protection  is  unconstitutional,  because  it  interferes 
with  the  civil  liberty  of  the  citizen,  when  he  is  not  threaten- 
ing any  evil  to  the  public.  But  protective  tariffs  are  usually 
needed,  either  because  it  is  impossible  to  manufacture 
the  home  products  as  cheaply,  or  because  they  are  of  an 
inferior  character.  Hence,  the  consumer  is  made  to  pay 
more  for  his  goods,  and  the  tariff  furthermore  deprives 
him  of  his  property,  without  due  process  of  law.  Without 
express  constitutional  authority,  nothing  but  free  trade  is 
permissible  under  a  constitutional  government  and  in  a  free 
State. 

§  94.   Liberty  of  contract,  a  constitutional  right.  — As 

an  abstract  proposition,  it  would  be  nowhere  questioned 
that  the  right  to  make  whatever  contract  one  pleases  is 
guaranteed  by  all  the  American  constitutions,  Federal  as 
well  as  State;  at  least,  by  necessary  implication  from  the 
constitutional  guaranty  that  no  man  shall  be  deprived  of 
liberty  or  property,  except  by  due  process  of  law.  Nor  is 
it  necessary,  under  the  prevalent  rules  of  constitutional 
interpretation  and  construction,  to  rely  upon  any  unwritten 
law:  for,  while  the  phrase,  freedom  or  liberty  of  contract, 
is  not  to  be  found  in  the  bill  of  rights  of  any  American 
constitution,  in  almost  all  of  them  the  right  to  acquire  and 
possess  property  and  to  pursue  happiness  is  declared  to  be 
inalienable.  And  this  it  has  been  rationally  declared  "  in- 
cludes the  right  to  make  reasonable  contracts,  which  shall 
be  under  the  protection  of  the  law."  1 

In  all  the  constitutions  of  the  United  States,  it  is  sub- 
stantially declared  that  "  no  man  shall  be  deprived  of  his 
life,  liberty  and  property,  except  by  due  process  of  law  " 

1  Commonwealth  v.  Perry,  155  Mass.  127.  See,  also.,  State  v.  Stewart, 
59  Vt.  273;  State  v.  Goodwill,  13  W.  Va.  179;  Leep  v.  St.  Louis  I.  M.  & 
S.  By.,  58  Ark.  407. 


COMPULSORY   FORMATION    OF    BUSINESS    DELATIONS.     295 

(sometimes  "  except  by  the  judgment  of  his  peers  and  the 
law  of  the  land  ").  And  one's  liberty,  as  well  as  prop- 
erty, is  infringed,  if  his  liberty  to  make  reasonable  con- 
tracts is  taken  away  or  restricted  by  unreasonable 
regulations.  But,  here,  as  elsewhere  in  the  discussion  of 
the  subject  of  police  power,  this  constitutional  liberty  of 
contract  is  not  conceded  to  be  absolutely  free  from  all 
legislative  restraint.  Such  a  condition  would  cause  this 
liberty  by  degenerating  into  an  unrestrained  license,  to 
become  a  serious  menace  to  the  safety  and  welfare  of  the 
public,  or  to  threaten  trespass  upon  the  just  rights  of 
other  individuals.  From  time  immemorial,  it  has  not  been 
lawful  for  one  to  make  a  contract  for  the  commission  of 
a  crime,  or  for  the  violation  of  any  law  or  trespass  upon 
any  one's  rights.  It  has  never  been  lawful  to  contract  for 
the  commission  of  a  fraud,  or  to  commit  fraud  in  the 
making  of  a  contract.  And  now,  with  the  extension  of 
the  scope  and  application  of  the  police  power  in  the  fur- 
therance and  protection  of  public  and  individual  welfare, 
which  progresses  with  the  increase  in  the  popular  knowl- 
edge of  public  affairs;  we  find  regulations,  which  more  or 
less  limit  or  restrict  liberty  of  contract,  rapidly  increas- 
ing. And  the  courts  are  being  constantly  called  upon  to 
declare  what  regulations  of  this  kind  are  reasonable  or 
unreasonable,  and  hence  constitutional  or  unconstitutional. 
In  the  next  succeeding  sections,  a  variety  of  these  restric- 
tions upon  liberty  of  contract  will  be  explained  and  their 
constitutionality  or  unconstitutionality  expounded  in  the 
light  of  the  adjudications. 

§  95.  Compulsory  formation  of  business  relations  — 
Common  carriers  and  innkeepers  exceptions  to  the  rule  — 
Theaters  and  other  places  of  amusement.  —  It  is  a  part 
of  civil  liberty  to  have  business  relations  with  whom  one 
pleases.  Judge  Cooley  says:  "  It  is  a  part  of  every  man's 
civil  rights  that  he  be  left  at  liberty  to  refuse  business  rela- 

§   i>5 


296  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

tions  with  any  person  whomsoever,  whether  the  refusal 
rests  upon  reason,  or  is  the  result  of  whim,  caprice,  preju- 
dice or  malice."  *  Business  relations  must  be  voluntary  in 
order  to  be  consistent  with  civil  liberty.  An  attempt  of 
the  State  to  compel  one  man  to  enter  into  business  relations 
with  another,  can  only  be  justified  by  some  public  reason 
or  necessity.  In  an  ordinary  private  business  relation,  the 
State  cannot  constitutionally  interfere,  whatever  reason 
may  be  assigned  for  one's  refusal  to  have  dealings  with 
another.  It  is  no  concern  of  the  State  or  of  the  individual, 
what  those  reasons  are.  It  is  his  constitutional  right  to 
refuse  to  have  business  relations  with  a  particular  individ- 
ual, with  or  without  reason.  But  there  are  cases  in  which 
it  has  long  been  held  to  be  within  the  scope  of  legislative 
authority  to  interfere  with,  and  compel,  the  formation  of 
business  relations.  The  common  law  of  England,  and  of 
this  country,  has  for  centuries  justified  this  power  of  con- 
trol over  common  carriers  and  innkeepers.  No  man  is 
compelled  to  become  a  common  carrier  or  innkeeper ;  but 
if  he  holds  himself  out  to  the  world  as  such,  he  is  obliged 
to  enter  into  business  relations  with  all,  under  impartial 
and  reasonable  regulations.  The  common  carrier  must 
carry  for  all,  within  his  regular  line  of  business,  and  the 
innkeeper  must  provide  accommodation  for  all  who  come  to 
him,  as  long  as  he  has  room  for  them.  These  two  cases 
have  for  so  long  a  time  been  recognized  as  exceptions  to 
the  general  rule,  in  respect  to  the  voluntary  character  of 
business  relations,  that  the  reasons  for  them  are  rarely,  if 
ever,  demanded,  and  certainly  not  questioned.  But  a 
determination  of  the  constitutional  reasons  for  these  excep- 
tions, if  there  are  any,  will  help  to  discover  the  limitations 
of  legislative  power  in  respect  to  other  kinds  of  business. 
It  is  stated  usually,  that  the  business  of  a  common  carrier 
is  a  quasi  public  business,  meaning  that  the  public  have 

1  Cooley  on  Torts,  p.  278. 
§    95 


COMPULSORY  FORMATION   OF  BUSINESS   RELATIONS.     297 

some  rights  in  it,  as,  for  example,  the  right  to  a  compul- 
sory formation  of  business  relations,  which  they  do  not 
possess  in  respect  to  a  purely  private  business.  But  that 
is  rathtr  a  statement  of  what  is,  rather  than  a  reason  for 
its  existence.  A  similar  statement  is  usually  made  in  re- 
gard to  the  peculiar  liability  of  innkeepers,  and  ordinarily 
deemed  sufficient.  But  if  this  regulation  of  the  business 
of  a  common  carrier,  and  of  an  innkeeper,  is  justifiable 
under  our  constitutional  limitations,  there  must  be  some 
good  public  reason  for  the  regulation,  and  not  merely  a 
matter  of  public  convenience.  Where  the  common  carrier 
enjoys,  in  the  prosecution  of  his  business,  unusual  priv- 
ileges or  franchises,  as  in  the  case  of  railroads,  ferries, 
street  car  companies  and  the  like,1  one  need  not  go  further 
for  a  reason  to  justify  such  a  police  regulation.  Since  the 
State  grants  the  common  carrier  a  privilege,  not  equally 
enjoyed  by  others,  for  the  promotion  of  the  public  con- 
venience, it  might  very  well  arrange  for  the  impartial 
carriage  of  all,  under  reasonable  regulations.  And  inas- 
much as  the  common  carriers,  who  do  not  have  any 
special  privileges,  like  hackmen,  draymen,  and  drivers 
of  express  and  furniture  wagons,  make  a  special  use  of 
a  general  privilege,  in  plying  their  trade,  it  may  not  be 
unreasonable  for  the  State  to  compel  them  to  carry  all 
who  may  offer  themselves  or  their  goods  But  no  such 
reasons  can  be  assigned  for  a  similar  regulation  of  inn- 
keepers. They  enjoy  no  privileges  of  any  kind.  Every 
man  has  a  natural  right  to  keep  an  inn,  provided  he  so  con- 
ducts it  as  not  to  violate  the  rights  of  others,  or  to  consti- 
tute a  public  nuisance.  If  the  business  was  of  such  a 
nature,  that  for  the  protection  of  the  public  from  injury 
it  is  necessary  to  make  a  monopoly  and  grant  it  to  one  or 
moro,  as  a  special  privilege,2  then  it  would  be  the  duty  of 
the  State  to  provide  for  the  impartial  entertainment  of  all 

1  See  post,  §§  208-214.  »  See  post,  §  127. 

§    95 


298  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

who  present  themselves,  and  comply  with  the  reasonable 
regulations  of  the  iun.  But  the  inn  is  no  more  likely  to  be 
productive  of  public  injury  than  is  the  boarding  house, 
from  which  the  inn  is  distinguished.  The  keeper  of  a  board- 
ing house  is  not  obliged  to  receive  as  a  guest  any  one  who 
comes.  The  threatening  danger  to  the  public,  arising  from 
the  improper  conduct  of  the  inn,  is,  therefore,  not  the  reason 
for  the  rule  of  law,  which  obliges  the  innkeeper  to  receive 
as  his  guest,  any  traveler  of  decent  behavior,  who  may 
apply.  The  object  of  the  rule  is  to  make  it  convenient  for 
travelers  to  find  lodging  upon  arriving  in  a  strange  place. 
It  is  a  worthy  object,  but  no  man  can  be  compelled  to  lodge 
another,  simply  because  he  is  a  traveler,  and  a  stranger. 
No  sufficient  reason  can  be  assigned  ;  unless  the  reason, 
given  by  Chief  Justice  Waite  in  a  later  case,1  may  be  ac- 
cepted as  a  proper  one.  He  says  :  "  Looking  to  the  com- 
mon law,  from  whence  came  the  right  which  the  constitu- 
tion protects,  we  find  that  when  private  property  is  affected 
with  a  public  interest,  it  ceases  to  be  juris  privali  only. 
This  was  said  by  Lord  Chief  Justice  Hale  more  than  two 
hundred  years  ago,  in  his  treatise  De  Portibus  Maris,  1 
Harg.  Law  Tracts,  78,  and  has  been  accepted  without  ob- 
jection as  an  essential  element  in  the  law  of  property  ever 
since.  Property  does  become  clothed  with  a  public  inter- 
est, when  used  in  a  manner  to  make  it  of  public  consequence, 
and  affect  the  community  at  large.  When,  therefore,  one 
devotes  his  property  to  a  use  in  which  the  public  has  an 
interest,  he,  in  effect,  grants  to  the  public  an  interest  in 
that  use,  and  must  submit  to  be  controlled  by  the  public 
for  the  common  good,  to  the  extent  of  the  interest  he  has 
thus  created.  He  may  withdraw  his  grant  by  discontinuing 
the  use,  but,  so  long  as  be  maintains  the  use,  he  must  sub- 
mit to  the  control."  2  In  this  case,  the  business  in  question 
was  the  storage  of  grain  in  bulk  in  the  Chicago  elevators. 

1  Munn  v.  Illinois,  94  U.  S.  113.  2  pp.  125, 126. 

§  (J5 


COMPULSORY    FORMATION    OF    BUSINESS    RELATIONS.     299 

As  applied  to  the  particular  case,  the  rule  thus  laid  down 
by  Chief  Justice  Waite  would  give  to  the  legislature  the 
right  to  regulate  any  business,  which  should  become  a  pub- 
lic necessity.  The  public  utility  of  the  business  clothes  it 
with  a  public  interest,  and  authorizes  police  regulation  to 
prevent  imposition  or  oppression  where  the  business  be- 
comes a  virtual  monopoly.1  It  is  unquestionable  that  the 
State  can,  and  indeed  it  is  its  duty  to,  subject  to  police 
control  a  monopoly,  created  by  law ;  but  in  this  case  it  is 
laid  down  for  the  first  time  that  where  the  circumstances, 
surrounding  a  particular  business,  or  its  character,  make  it 
a  "virtual  monopoly,"  the  State  can  regulate  the  conduct 
of  the  business,  so  that  all  having  concern  in  it,  will  be 
treated  impartially  and  fairly.  I  say  this  rule  has  been 
laid  down  for  the  first  time,  although  the  chief  justice  re- 
fers to  it  as  a  long  established  rule,  and  refers  to  Lord  Hale 

1  "  In  this  connection  it  must  also  be  borne  in  mind  that,  although 
in  1874,  there  were  in  Chicago  fourteen  warehouses  adapted  to  this 
particular  business,  and  owned  by  about  thirty  persons,  nine  business 
firms  controlled  them,  and  that  the  prices  charged  and  received  for 
storage  were  such  as  have  been  from  year  to  year  agreed  upon  and 
established  by  the  different  elevators  or  warehouses  in  the  city  of 
Chicago,  and  which  rates  have  been  annually  published  in  one  or 
more  newspapers  printed  in  said  city,  in  the  month  of  January  in  each 
year,  as  the  established  rates  for  the  year  then  next  ensuiug  such  pub- 
lication. Thus  it  is  apparent  that  all  the  elevating  facilities  through 
which  these  vast  productions  of  seven  or  eight  great  States  of  the 
West  must  pass  on  the  way  to  four  or  five  of  the  States  on  the  sea- 
shore may  be  a  «  virtual '  monopoly. 

"  Under  such  circumstances  it  is  difficult  to  see  why,  if  the  common 
carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeeper,  or  the  wharf- 
man,  or  the  baker,  or  the  cartman,  or  the  hackney  coachman,  pursues  a 
public  employment  and  exercises  '  a  sort  of  public  office,'  these  plaintiffs 
in  error  do  not.  They  stand,  to  use  again  the  language  of  their  counsel, 
in  the  very  '  gateway  of  commerce,'  and  take  toll  from  all  who  pass. 
Their  business  most  certainly  '  tends  to  a  common  charge,  and  is  become 
a  thing  of  public  interest  and  use.'  *  *  *  Certainly,  if  any  business 
can  be  clothed  *  with  a  public  interest,  and  cease  to  be  juris  privati  only, 
this  has  been."  Opinion  of  Waite^  Ch.  J.,  supra.  See  post,  §  93,  fur 
extracts  from  the  dissenting  opinion  of  Justice  Field. 

$  95 


300  REGULATION    OF,  TRADES    AND    OCCUPATIONS. 

as  his  authority.  A  careful  study  of  Rule's  writings  will 
disclose  the  fact  that  to  no  case  does  he  refer  in  which  the 
business  does  not  under  the  law  constitute  a  privilege,  more 
or  less  of  a  legal  monopoly.  There  is  nothing  in  his 
writings  to  justify  the  application  of  his  rule  or  his  reason- 
ing to  a  business,  which  is  a  virtual  monopoly,  but  is  not 
made  so  by  law.1 

But  even  this  is  not  a  satisfactory  reason  for  compelling 
all  innkeepers  to  receive  all  guests  applying  to  them  at  the 
present  day.  Perhaps  at  an  early  day,  when  the  number 
of  travelers  was  limited,  and  was  not  large  enough  to 
support  more  than  one  inn  in  most  places,  innkeeping 
may  have  been  a  virtual  monopoly.  But  that  town  is 
very  small,  in  this  country,  which  cannot  boast  of  at  least 
two  inns,  and  the  actual  rivalry  and  competition  to  secure 
guests  will  dispel  all  notions  of  a  virtual  monopoly.  No 
reason  but  public  convenience  can  be  suggested  for  the  ex- 
istence of  this  law  in  respect  to  innkeepers,  and  it  is  by 
no  means  a  satisfactory  one.  The  public  convenience  can 
never  justify  the  interference  of  the  State  with  one's 
private  business. 

Of  late  a  disposition  to  bring  within  this  category  the 
theaters  and  other  places  of  public  amusements  has  been 
displayed  by  legislatures,  both  State  and  national,  in  order 
to  prevent  discrimination  by  the  managers  and  proprietors  of 
such  places  against  the  negro,  "on  account  of  his  race,  color, 
or  previous  condition  of  servitude."  The  United  States 
statute,  which  has  lately  been  declared  to  be  unconstitu- 
tional, because  the  law  encroaches  upon  the  domain  of  the 
State  legislatures,2  and  which  corresponds  in  all  essential  par- 
ticulars to  the  State  statutes  on  the  same  subject,  provided 
«'  that  all  persons  within  the  jurisdiction  of  the  United 
States  shall  be  entitled  to  the  full  and  equal  enjoyment  of 

1  See  post,  §  96,  for  lengthy  quotations  from  Lord  Hale. 

2  See  Civil  Rights  Cases,  109  U.  S.  3. 

§    95 


COMPULSORY   FORMATION    OF    BUSINESS    RELATIONS.     301 

the  accommodations,  advantages,  facilities  and  privileges  of 
inns,  public  conveyances  on  land  and  water,  theaters  and 
other  places  of  public  amusement,  subject  only  to  the  con- 
ditions and  limitations  established  by  law,  and  applicable 
alike  to  citizens  of  every  race  and  color,  regardless  of  any 
previous  condition  of  servitude."  So  far  as  these  statutes 
refer  to  the  enjoyment  of  the  privileges  of  inns  and 
public  conveyances,  they  merely  affirm  the  common  law, 
and  grant  no  new  right.  But  in  respect  to  theaters 
and  other  places  of  public  amusement,  the  regulation  is 
certainly  novel.  The  only  legal  reason  for  the  regulation 
is  public  convenience,  unless  the  circumstances  are  such  that 
the  business  becomes  a  virtual  monopoly.  And  to  justify 
the  regulation  on  these  grounds  is  certainly,  going  very  far 
toward  removing  all  limitation  upon  the  power  of  the  State 
to  regulate  the  private  business  of  an  individual.  In  the 
Supreme  Court  case,1  Chief  Justice  Waite  justifies  the 
police  control  of  "  a  virtual  monopoly,"  on  the  ground  that 
the  use  of  the  elevator  is  a  public  necessity  to  all  merchants, 
who  are  engaged  in  the  shipment  of  grain  through  Chicago 
to  all  points  of  the  country.  So,  also,  may  the  entertain- 
ment at  an  inn  be  considered  a  public  necessity  to  all 
travelers.  But  attendance  upon  theatrical  and  other  pub- 
lic amusements  can  in  no  sense  be  considered  a  necessity, 
nor  is  the  business  a  franchise  or  legal  monopoly.  Such 
legislation  should,  therefore,  be  condemned  as  unconstitu- 
tional. But  it  has  been  sustained  in  some  cases  against  all 
objections,2  and  Judge  Cooley  justifies  it  in  the  following 
language:  "  Theaters  and  other  places  of  public  amuse- 
ment exist  wholly  under  the  authority  and  protection  of 
State  laws  ;  their  managers  are  commonly  licensed  by  the 
State,  and  in  conferring  the  license  it  is  no  doubt  compe- 
tent for  the  State  to  impose  the  condition  that  the  prop- 

1  Muun  v.  Illinois,  supra. 

2  Donnell  v.  State,  48  Miss.  661;  People*.  King,  110  N.  Y.  418;  Bryan 
v.  Adler,  97  Wis.  124. 

§    J>5 


302  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

rietors  shall  admit  and  accommodate  all  persons  impar- 
tially. Therefore,  State  regulations  corresponding  to  those 
established  by  Congress  must  be  clearly  within  the  compe- 
tency of  the  legislature,  and  might  be  established  as  suit- 
able regulations  of  police."  * 

In  a  recent  case,  in  which  an  alien  seaman  was  forced  to 
ship  in  an  American  vessel  against  his  will,  and  in  the 
absence  of  any  contract,  it  was  held  that  his  forced  service 
on  the  ship  was  violative  of  the  thirteenth  amendment  of 
the  United  States  Constitution.2 

§  96.  Regulation  of  prices  and  charges. — A  most 
interesting  question,  somewhat  like,  and  resting  upon  the 
same  grounds  as  the  one  discussed  in  the  preceding  section, 
is  the  right  of  the  government  to  regulate  prices  and 
charges  for  things  and  services.  The  exercise  of  this 
power  was  quite  common  in  past  ages;  and  there  appeared 
to  be  no  well  defined  limitations  upon  the  power,  if  any 
at  all  were  recognized.  But  under  a  constitutional  and 
popular  government,  there  must  necessarily  be  some  limit- 
ation. It  is  a  part  of  the  natural  and  civil  liberty  to  form 
business  relations,  free  from  the  dictation  of  the  State, 
that  a  like  freedom  should  be  secured  and  enjoyed  in 
determining  the  conditions  and  terms  of  the  contract  which 
constitutes  the  basis  of  the  business  relation  or  transaction. 
It  is,  therefore,  the  general  rule,  that  a  man  is  free  to  ask 
for  his  wares  or  his  services  whatever  price  he  is  able  to 
get  and  others  are  willing  to  pay;  and  no  one  can  compel 
him  to  take  less,  although  the  price  may  be  so  exorbitant  as 
to  become  extortionate.  No  one  has  a  natural  right  to  the 
enjoyment  of  another's  property  or  services  upon  the  pay- 
ment of  a  reasonable  compensation ;  for  we  have  already 
recognized  the  right  of  one  man  to  refuse  to  have  dealings 
with  another  on  any  terms,  whatever  may  be  the  motive 

1  Cooley  on  Torts,  p.  285.     See  post,  §  101,  concerning  licenses  as  police 
regulations. 

2  In  re  Chang  Fat,  96  Fed.  202. 

§    96 


REGULATION  OF  PRICES  AND  CHARGES.        303 

for  his  refusal.  But  there  are  exceptions  to  the  rule 
which  can  be  justified  on  constitutional  grounds.  This 
general  freedom  from  the  State  regulation  of  prices  and 
charges  can  only  be  claimed  as  a  natural  right  so  far  as  the 
business  is  itself  of  a  private  character,  and  is  not  connected 
with,  or  rendered  more  valuable  by,  the  enjoyment  of  some 
special  privilege  or  franchise.  Whenever  the  business  is 
itself  a  privilege  or  franchise,  not  enjoyed  by  all  alike,  or 
the  business  is  materially  benefited  by  the  gift  by  the  State 
of  some  special  privileges  to  be  enjoyed  in  connection  with 
it,  the  business  ceases  to  be  strictly  private,  and  becomes  a 
quasi  public  business,  and  to  that  extent  may  be  subjected 
to  police  regulation.  A  special  privilege  or  franchise  is 
granted  to  individuals  because  of  some  supposed  benefit  to 
the  public,  and  in  order  that  the  benefit  may  be  assured  to 
the  public,  the  State  may  justly  institute  regulations  to  that 
end.  The  regulation  of  prices  in  such  cases  will,  therefore, 
be  legitimate  and  constitutional.1 

1  Chicago,  etc.,  R.  R.  Co.  ».  Iowa,  94  U.  S.  155;  Peik  v.  Chicago,  etc., 
K.  R.  Co.,  94  U.  S.  164;  Ames  v.  Un.  Pac.  Ry,,  64  Fed.  165;  Chicago, 
M.  &  St.  P.  Ry.  Co.  v.  Becher,  32  Fed.  849 ;  Smith  v.  Lake  Shore  & 
M.  S.  Ry.  Co.,  114  Mich.  460;  Slaughterhouse  Cases,  116  Wall.  36; 
Waterworks  v.  Schotler,  110  U.  S.  347.  Judge  Cooley  classifies  the 
eases  as  follows :  — 

"  1.  Where  the  business  is  one,  the  following  of  which  is  not  a  matter 
of  right,  but  is  permitted  by  the  State  as  a  matter  of  privilege  or  fran- 
chise. Under  this  head  may  be  classed  the  business  of  setting  up  lot- 
teries, of  giving  shows,  and  of  keeping  billiard-tables  for  hire;  of  selling 
intoxicating  drinks,  and  of  keeping  a  ferry  or  toll  bridge. 

"  2.  When  the  State  on  public  grounds  renders  to  the  business  special 
assistance  by  taxation,  or  under  the  eminent  domain,  as  is  done  in  the 
case  of  railroads. 

"  3.  When  for  the  accommodation  of  the  business  special  privileges 
are  given  in  the  public  streets,  or  exceptional  use  allowed  of  public 
property  or  public  easements,  as  in  the  case  of  hackmen,  draymen,  etc. 
Commonwealth  v.  Gage,  114  Mass.  328. 

<l  4.  When  exclusive  privileges  are  granted  in  consideration  of  some 
special  return  to  the  public  and  in  order  to  secure  something  to  the  pub  - 
lie  not  otherwise  attainable."  Cooley's  Principles  of  Constitution,  p. 
234.  See  post,  §  212,  on  the  regulation  of  railroad  rates  of  charges. 

§  96 


304  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

But  the  regulation  of  prices  will  not  be  justified  in  any 
case  where  the  law  merely  declares  the  prosecution  of  the 
business  to  be  a  privilege  or  franchise.  If  it  be  without  leg- 
islation a  natural  right,  no  law  can  make  it  a  privilege  by 
requiring  a  license.  The  deprivation  of  the  natural  right 
to  carry  on  the  business  must  be  justifiable  by  some  public 
reason  or  necessity.  Otherwise  the  general  or  partial  pro- 
hibition is  unconstitutional  and  furnishes  no  justification 
for  the  regulation  of  prices  and  charges,  incident  to  the 
business.1 

But  some  of  the  courts  are  inclined  to  extend  the  exercise 
of  this  power  of  control  to  other  cases,  which  do  not  come 
within  the  classes  mentioned,  viz. :  those  in  which  no  special 
privilege  or  franchise  is  enjoyed,  and  in  which  there  is  no 
legal  monopoly,  but  in  which  the  circumstances  conspire  to 
create  in  favor  of  a  few  persons  a  virtual  monopoly  out  of 
a  business  of  supreme  necessity  to  the  public.  The  leading 
case  is  that  of  Munn  v.  Illinois,  already  mentioned  in  the 
preceding  section.2  It  has  so  important  a  bearing  upon  the 
question  under  discussion,  that  we  will  quote  again  Chief 
Justice  Waite's  statement  of  the  rule  laid  down  in  that  case. 
He  says :  "  Looking, then,  to  the  common  law,  from  whence 
came  the  right  which  the  constitution  protects,  we  find  that 
when  private  property  is  '  affected  with  a  public  interest,  it 
ceases  to  be  juris  privati  only.'  This  was  said  by  Lord 
Chief  Justice  Hale,  more  than  two  hundred  years  ago,  in 
his  treatise  De  Portibus  Marisf  and  has  been  accepted  with- 
out objection  as  an  essential  element  in  the  law  of  property 
ever  since.  Property  does  become  clothed  with  a  public 
interest  when  used  in  a  manner  to  make  it  of  public  conse- 
quence, and  affect  the  community  at  large.  When,  there- 
fore, one  devotes  his  property  to  a  use  in  which  the 
public  has  an  interest,  he,  in  effect,  grants  to  the  public  an 

1  See  post,  §  102. 

2  Mann  v.  People,  69  111.  80;  s.  c.  94  U.  S.  113. 

3  1  Harg.  Law  Tracts,  78. 

§    96  , 


REGULATION   OF   PRICES    AND    CHARGES.  305 

interest  in  that  use,  and  must  submit  to  be  controlled  by 
the  common  good,  to  the  extent  of  the  interest  he  has  thus 
created.  He  may  withdraw  his  grant  by  discontinuing  the 
use  ;  but,  so  long  as  he  maintains  the  use,  he  must  submit  to 
the  control."1  Although  the  application  of  these  princi- 
ples to  the  case  in  question  only  constitutes  a  precedent  for 
justifying  the  regulation  of  prices  in  those  cases,  where  the 
business  is  a  virtual  monopoly  and  of  great  necessity  to  the 
public,3  yet  the  language  is  broad  enough  to  justify 
almost  any  case  of  regulation  of  prices.  Under  this  rule, 
the  attainment  of  the  object  of  all  individual  activity,  viz.: 
to  make  oneself  or  one's  services  indispensable  to  the  pub- 
lic, furnishes  in  every  case  the  justification  of  State  inter- 
ference. Only  the  more  or  less  unsuccessful  will  be 
permitted  to  enjoy  his  liberty  without  governmental  molest- 
ation. We  feel  with  Mr.  Justice  Field,  who  dissents 
from  the  opinion  of  the  court,  that  "  if  this  be  sound  law,  if 
there  be  no  protection,  either  in  the  principles  upon  which 
our  republican  government  is  founded,  or  in  the  prohibi- 
tions of  the  constitution  against  such  an  invasion  of  private 
rights,  all  property  and  all  business  in  the  State  are  held 
at  the  mercy  of  a  majority  of  its  legislature."  8  For  the 

1  Mann  v.  Illinois,  94  U.  S.  125,  126. 

2  In  the  case  in  question,  the  use  of  the  Chicago  elevator  was  neces- 
sary to  all  dealers  in  grain  in  that  city,  and  was  controlled  by  nine  firms, 
who  annually  established  rates  of  charges  for  the  regulation  of  the  busi- 
ness.   Says  Chief  Justice  Waite:  "  Thus  it  is  apparent  that  all  the  ele- 
vating facilities  through  which  these  vast  productions  '  of  seven  or  eight 
great  States  of  the  West '  must  pass  on  the  way  '  to  four  or  five  of  the 
States  on  the  seashore  '  may  be  a  virtual  monopoly."    p.  131. 

8  "The  public  has  no  greater  interest  in  the  use  of  buildings  for  the 
storage  of  grain  than  it  has  in  the  use  of  buildings  for  the  residences  of 
families,  nor,  indeed,  anything  like  so  great  an  interest;  and,  according 
to  the  doctrine  announced,  the  legislature  may  fix  the  rent  of  all  tene- 
ments used  for  residences,  without  reference  to  the  cost  of  their  erection. 
If  the  owner  does  not  like  the  rates  prescribed,  he  may  cease  renting  his 
houses.  He  has  granted  to  the  public,  says  the  court,  an  interest  in  the 
use  of  the  buildings,  and  '  he  may  withdraw  his  grant  by  discontinuing 
the  use ;  but,  so  long  as  he  maintains  the  use,  he  must  submit  to  the  con- 

20  §  96 


306  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

same  reasons,  we  find  the  Supreme  Court  of  Alabama  jus- 
tifying an  act  of  the  legislature  which  authorized  the  town 
council  of  Mobile  to  license  bakers,  and  regulate  the  weight 
and  price  of  bread.  In  declaring  the  act  to  be  constitu- 
tional, the  court  said :  "  There  is  no  motive,  however,  for  this 
interference  on  the  part  of  the  legislature  with  the  lawful  ac- 
tions of  individuals  or  the  mode  in  which  private  property 
shall  be  enjoyed,  unless  such  calling  affects  public  inter- 
ests, or  private  property  is  employed  in  a  manner  which 
directly  affects  the  body  of  the  people." 

"  Upon  this  principle,  in  this  State,  tavern  keepers  are 
licensed  and  required  to  enter  into  bond,  with  surety,  that 
they  will  provide  suitable  goods  and  lodgings  for  their 
guests,  and  stabling  and  provender  for  their  horses.  The 
county  court  is  required,  at  least,  once  a  year,  to  settle  the 
rates  of  innkeepers,  and  upon  the  same  principle  is  founded 
the  control  which  the  legislature  has  always  exercised  in  the 
establishment  and  regulation  of  mills,  fences,  bridges, 
turnpike  roads  and  other  kindred  subjects."  1 

Chief  Justice  Waite  relies  upon  Lord  Hale  as  an  authority 
for  his  recognition  of  the  rule  as  of  common-law  origin. 
But  there  is  nothing  in  Lord  Hale's  writings  to  support  the 
broad  application  which  the  Chief  Justice  makes  of  his 

trol.'  The  public  is  interested  in  the  manufacture  of  cotton,  woolen  and 
silken  fabrics,  in  the  construction  of  machinery,  in  the  printing  and  pub- 
lication of  books  and  periodicals,  and  in  the  making  of  utensils  of  every 
variety,  useful  and  ornamental ;  Indeed,  there  is  hardly  an  enterprise  or 
business  engaging  the  attention  and  labor  of  any  considerable  portion  of 
the  community,  in  which  the  public  has  not  an  interest  in  the  sense 
in  which  that  term  is  used  by  the  court  in  its  opinion;  and  the  doc- 
trine which  allows  the  legislature  to  interfere  with  and  regulate  the 
charges  which  the  owners  of  property  thus  employed  shall  make  for 
its  use,  that  is,  the  rates  at  which  all  these  different  kinds  of  business 
shall  be  carried  on,  has  never  before  been  asserted,  so  far  as  I  am  aware, 
by  any  judicial  tribune  in  the  United  States."  Dissenting  opinion  of 
Justice  Field  in  Munn  v.  Illinois,  94  U.  S.  136. 

1  Mayor  v.  Yuille,  3  Ala.  137  (36  Am.  Dec.  441).     See  Page  t>.  Fazack- 
erly,  36  Barb.  392;  Guillotte  v.  New  Orleans,  12  La.  Ann.  432. 

$    96 


REGULATION  OF   PRICES   AND   CHARGES.  307 

language.  In  every  case  to  which  Lord  Hale  applies  this 
doctrine,  there  is  a  grant  of  a  special  privilege  or  franchise, 
and  the  enjoyment  of  it  is  regulated  by  law  so  that  the 
public  may  derive  from  it  the  benefit  which  constituted  the 
consideration  of  the  grant.  Thus,  in  respect  to  ferries,  he 
says,  the  king  "  has  a  right  of  franchise  or  privilege,  that 
no  man  may  set  up  a  common  ferry  for  all  passengers  with- 
out a  prescription  time  out  of  mind,  or  a  charter  from  the 
king."  And  he  proceeds  to  make  the  claim  that  "every 
ferry  ought  to  be  under  a  public  regulation,  viz. :  that  it 
give  attendance  at  due  times,  keep  a  boat  in  due  order,  and 
take  but  reasonable  toll."  So,  also,  in  respect  to  wharves 
and  wharfingers,  the  same  writer  says : — 

"  A  man,  for  his  own  private  advantage,  may,  in  a  port 
or  town,  set  up  a  wharf  or  crane,  and  may  take  what  rates 
he  and  his  customers  can  agree  for  cranage,  wharfage, 
housellage,  pesage  ;  for  he  doth  no  more  than  is  lawful  for 
any  man  to  do,  viz. ,  make  the  most  of  his  own.  *  *  * 
If  the  king  or  subject  have  a  public  wharf,  unto  which  all 
persons  that  come  to  that  port  must  come  and  unlade  or  lade 
their  goods,  as  for  the  purpose,  because  they  are  the  only 
wharves  licensed  by  the  king,  *  *  *  or  because  there 
is  no  other  wharf  in  that  port,  as  it  may  fall  out  where  a 
port  is  newly  erected ;  in  that  case  there  cannot  be  taken 
arbitrary  and  excessive  duties  for  cranage,  wharfage, 
pesage,  etc.,  neither  can  they  be  enhanced  to  an  immoder- 
ate rate ;  but  the  duties  must  be  reasonable  and  moderate, 
though  settled  by  the  king's  license  or  charter.  For  now 
the  wharf  and  crane  and  other  conveniences  are  affected 
with  a  public  interest,  and  they  cease  to  be  juris  privati 
only  ;  as  if  a  man  set  out  a  street  in  new  building  on  his 
own  land,  it  is  now  no  longer  a  bare  private  interest,  but 
is  affected  by  a  public  interest."  l  At  common  law,  the 
right  of  property  in  a  wharf  or  pier  was  a  franchise.  Lord 

1  De  Portibus  Marls,  1  Harg.  Law  Tracts,  78. 

$    96 


308  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

Hale,  therefore,  cannot  be  cited  in  support  of  the  doctrine 
that  the  State  may  regulate  the  prices  charged  in  a  business 
which  from  the  circumstances  becomes  a  virtual  monopoly. 
And  even  if  he  did  justify  such  regulations,  his  opinions 
can  hardly  be  set  up  in  opposition  to  the  rational  prohibi- 
bition  of  the  American  constitution.  By  all  the  known 
rules  of  constitutional  construction  the  conclusion  must  be 
reached  that  the  regulation  of  prices  in  such  a  case  is  un- 
constitutional ;  and  while  the  common  law  is  still  authority 
for  the  propriety  and  justification  of  laws,  which  antedate 
the  American  constitutions,  it  cannot  be  cited  to  defeat  the 
plain  meaning  of  the  constitution  in  respect  to  laws  subse- 
quently enacted. 

§  97.  Later  cases  on  regulating  prices  and  charges  — 
Regulations  must  be  reasonable  —  What  is  a  reason- 
able regulation,  a  judicial  question.  —  The  principle, 
enunciated  in  the  case  of  Munn  v.  Illinois,  by  the  Supreme 
Court  of  the  United  States,  has  been  confirmed  by  a  num- 
ber of  later  cases,  in  the  same  court,  and  in  other  State 
courts.1 

If  the  doctrine  of  Munn  v.  Illinois  and  of  the  Granger 
cases,  relating  to  legislative  regulation  of  railroad  rates, 
had  been  left  unlimited  in  its  operation,  the  fear  of  Justice 
Field  in  his  dissenting  opinion  2  that  under  the  judgment  of 
the  court  in  that  case  "  all  property  and  all  business  are 
held  at  the  mercy  of  a  majority  of  its  legislature,"  would 

i  See  In  re  Annan,  50  Hun,  413;  People  v.  Budd,  117  N.  T.  1  (see  Jus- 
tice Peckham's  dissenting  opinion  to  the  contrary,  and  approving  of  the 
position  taken  in  the  text  of  the  preceding  section)  ;  Budd  ».  People,  143 
U.  S.  517;  Peeple  v.  Walsh,  143  U.  S.  517;  Brass  v.  State  of  North 
Dakota,  153  U.  S.  391  (see  dissenting  opinions) ;  State  v.  Brass,  2  N.  D. 
482;  Cotting  v.  Kansas  City  Stock  Yards  Co.,  79  Fed.  679  (principle 
applied  to  stock  yards) ;  Higginson  v.  Kansas  City  Stock  Yards  Co.,  79 
Fed.  679.  In  Frisbie  v.  United  States,  157  U.  S.  160,  an  act  of  Congress 
was  sustained,  which  prohibited  pension  agents  and  attorneys  from 
charging  more  than  ten  dollars  for  their  services  in  procuring  a  pension. 

J  Munn  ».  Illinois,  94  U.  S.  136. 

§   97 


LATER  CASES  ON  REGULATING  PRICES  AND  CHARGES.      309 

have  been  more  than  realized.  Yielding  to  the  demands  of 
popular  sentiment,  the  legislatures  and  railroad  commis- 
sions have  in  a  number  of  cases  placed  the  maximum 
charges  for  freight  and  passengers  so  low  that  it  was 
impossible  for  the  railroads  affected  thereby  to  conduct 
their  business  with  any  reasonable  profit  on  the  capital  inr 
vested.  To  have  permitted  these  regulations  to  stand  as 
lawful  exercises  of  the  police  power  would  have  been  ajus- 
tification  of  the  confiscation  of  property  under  the  guise  of 
a  police  regulation  for  the  prevention  of  extortion.  A 
virtual  confiscation  like  that  is  clearly  beyond  the  police 
power.1  The  contention  for  reasonable  regulations  of 
rates  and  charges  led  to  the  enunciation  by  the  courts  of 
the  rule  that  no  such  regulation  would  be  constitutional,  if 
it  prevented  the  railroad  or  other  business  from  earning  a 
reasonable  profit  on  the  capital  invested,  and  that  whether 
such  a  regulation  was  unreasonable,  and  hence  unconsti- 
tutional, was  a  judicial  and  not  a  legislative  question. 
This  litigation  culminated  in,  and  was  finally  settled,  in 
accordance  with  the  principle  just  stated,  by  the  Nebraska 
freight  rate  decision  of  the  Supreme  Court  of  the  United 
States.2 

1  See  Dillon  v.  Erie  Ry.  Co.,  19  Misc.  Rep.  116;  43  N.  Y.  S.  320. 

3  Smyth  v.  Ames,  169  U.  S.  466;  Smyth  v.  Higginson,  169  U.  S.  466. 
See  other  cases  in  support  of  this  rule  of  limitation.  Clyde  v.  Rich- 
mond &  D.  Ry.  Co.,  57  Fed.  436;  Huidekoper  v.  Duncau,  57 
Fed.  436;  City  of  Richmond  v.  So.  Bell  Telephone  &  Telegraph  Co., 
85  Fed.  19;  Covington  &  L.  Turnpike  Co.  v.  Sandford,  164  U.  S. 
578;  Mercantile  Trust  Co.  ».  Texas  &  Pac.  Ry.  Co.,  61  Fed.  529; 
Same  v.  St.  Louis  S.  W.  Ry.  Co.  of  Texas,  7d.,  Same  v.  Tyler  S.  E.  Ry. 
Co.  of  Texas,  Id.;  Farmers'  Loan  &  Trust  Co.  v.  Gulf,  C.  &  S.  F.  Ry.  Co., 
Id.;  Same  v.  International  &  G.  N.  R.  Co.,  Id.;  Cotting  v.  Kansas  City 
Stock  Yards  Co.,  79  Fed.  679 ;  Higginson  v.  Kansas  City  Stock  Yards  Co., 
79  Fed.  679;  Milwaukee  Electric  Ry.  &  Light  Co.  v.  City  of  Milwaukee, 
87  Fed.  577;  Central  Trust  Co.  of  New  York  v.  City  of  Milwaukee,  87 
Fed.  577;  Beardsley  v.  N.  Y.,  Lake  Erie  &  W.  Ry.  Co.,  17  Misc.  Rep.  (N. 
Y.)  256;  40  N.  Y.  S.  1077;  San  Diego  Water  Co.  v.  City  of  San  Diego, 
118  Cal.  556;  San  Joaquin  &  King's  River  Canal  &  Irrigation  Co.  v.  Stan- 
islaus County,  90  Fed.  516.  In  Smyth  v.  Ames,  169  U.  S.  466,  the  opinion 

§    97 


310  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

In  this  case  the  Supreme  Court  of  the  United  States  pro- 
nounced the  Nebraska  freight  rate  law  to  be  unconstitu- 
tional, in  that  it  established  maximum  rates  which  were  so 
low,  that  the  railroads  affected  thereby  could  not  with  any 
reasonable  profit  carry  on  the  intrastate  business,  which 
alone  fell  within  the  operation  of  the  State  regulation. 

In  giving  judgment  for  the  court  Mr.  Justice  Harlan 
said,  inter  alia:  — 

**  Undoubtedly  that  question  [just  compensation]  could 
be  more  easily  determined  by  a  commission  composed  of 
persons  whose  special  skill,  observation  and  experience 
qualifies  them  to  so  handle  great  problems  of  transportation 
ns  to  do  justice  to  the  public  as  well  as  to  those  whose 
money  has  been  used  to  construct  and  maintain  highways 
for  the  convenience  and  benefit  of  the  people.  But  despite 
the  difficulties  that  confessedly  attend  the  proper  solution 
of  such  questions,  the  court  cannot  shrink  from  the  duty 
to  determine  whether  it  be  true,  as  alleged,  that  the 
Nebraska  statute  invades  or  destroys  rights  secured  by  the 
supreme  law  of  the  land.  No  one,  we  take  it,  will  contend 
that  a  State  enactment  is  in  harmony  with  that  law  simply 
because  the  legislature  of  the  State  has  declared  such  to  be 
the  case;  for  that  would  make  the  State  legislature  the 
final  judge  of  the  validity  of  its  enactment,  although  the 
Constitution  of  the  United  States  and  the  laws  made  in 
pursuance  thereof  are  the  supreme  law  of  the  land,  any- 
thing in  the  constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding. 

"  The  idea  that  any  legislature,  State  or  Federal,  can 
conclusively  determine  for  the  people  and  for  the  courts 

filed  in  the  prior  hearing  was  qualified  by  the  statement  of  the  court  that 
the  decision  went  no  farther  than  to  pronounce  the  rates  of  the  Ne- 
braska statute  to  be  unreasonably  low  as  an  entirety,  and  that  it  is  not 
to  be  construed  as  forbidding  the  State  Commission  to  rednce  rates  on 
specific  articles  below  the  rates  which  were  being  charged  when  the 
decision  was  rendered. 

§    97 


LATER  CASES  ON  REGULATING  PRICES  AND  CHARGES.      311 

that  what  it  enacts  in  the  form  of  law,  or  what  it  author- 
izes its  agents  to  do,  is  consistent  with  the  fundamental 
law,  is  in  opposition  to  the  theory  of  our  institutions.  The 
duty  rests  upon  all  courts,  Federal  and  State,  when  their 
jurisdiction  is  properly  invoked,  to  see  to  it  that  no  right 
should  by  the  supreme  law  of  the  land  be  impaired  or 
destroyed  by  legislation.  *  *  * 

"  In  our  judgment,  it  must  be  held  that  the  reasonable- 
ness or  unreasonableness  of  rate  prescribed  by  a  State  for 
the  transportation  of  persons  and  property  wholly  within 
its  limits  must  be  determined  without  reference  to  the  in- 
terstate business  done  by  the  carrier,  or  to  the  profits  de- 
rived from  it.  The  State  cannot  justify  unreasonably  low 
rate  for  domestic  transportation,  considered  alone,  upon 
the  ground  that  the  carrier  is  earning  large  profits  on  its 
interstate  business.  So  far  as  rates  of  transportation  are 
concerned,  domestic  business  should  not  be  made  to  bear 
the  losses  on  interstate  business  nor  the  latter  the  losses  on 
domestic  business.  It  is  only  rates  for  the  transportation 
of  persons  and  property  between  points  within  the  State, 
that  the  State  can  prescribe ;  and  when  it  undertakes  to 
prescribe  rates  not  to  be  exceeded  by  the  carrier,  it  must 
do  so  with  reference  exclusively  to  what  is  just  and  reason- 
able, as  between  the  carrier  and  the  public,  in  respect  of 
domestic  business.  The  argument  that  a  railroad  line  is  an 
entity ;  that  its  income  goes  into,  and  its  expenses  are  pro- 
vided out  of,  a  common  fund;  and  that  its  capitalization  is 
on  its  entire  line,  within  and  without  the  State,  can  have  no 
application  where  the  State  is  without  authority  over  rates 
on  the  entire  line  and  can  only  deal  with  local  rates,  and 
make  such  regulations  as  are  necessary  to  give  just  com- 
pensation on  local  business. 

"  If  a  railroad  corporation  has  bonded  its  property  for 
an  amount  that  exceeds  its  fair  value,  or  if  its  capitaliza- 
tion is  largely  fictitious,  it  may  not  impose  upon  the  public 
the  burden  of  such  increased  rates  as  may  be  required  for 

§  97 


\ 
312  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

the  purpose  of  realizing  profits  upon  such  excessive  valua- 
tion or  fictitious  capitalization;  and  the  apparent  value  of 
the  property  and  franchises  used  by  the  corporation,  as 
represented  by  its  stocks,  bonds  and  obligations,  is  not  alone 
to  be  considered  when  determining  the  rates  that  may  be 
reasonably  charged.  What  was  said  in  Covington  &  Lex- 
ington Tpk.  Road  Co.  v.  Sandford,  164  U.  S.  578,  is  per- 
tinent to  the  question  under  consideration.  It  was  there 
observed  :  *  It  cannot  be  said  that  a  corporation  is  entitled, 
as  of  right,  and  without  reference  to  the  interests  of  the 
public,  to  realize  a  given  per  cent,  upon  its  capital  stock, 
when  the  question  arises  whether  the  legislature  has  ex- 
ceeded its  constitutional  power  in  prescribing  rates  to  be 
charged  by  a  corporation  controlling  a  public  highway, 
stockholders  are  not  the  only  persons  whose  rights  or  inter- 
ests are  to  be  considered.  The  rights  of  the  public  are  not 
to  be  ignored.  It  is  alleged  here  that  the  rates  prescribed 
are  unreasonable  and  unjust  to  the  company  and  its  stock- 
holders. But  that  involves  an  inquiry  as  to  what  is  reason- 
able and  just  for  the  public.  *  *  *  Xhe  public  cannot 
properly  be  subjected  to  unreasonable  rates  in  order  that 
stockholders  may  earn  dividends.  The  legislature  has  the 
authority,  in  every  case,  where  its  power  has  not  been 
restrained  by  contract,  to  proceed  upon  the  ground  that  the 
public  may  not  rightfully  be  required  to  submit  to  unrea- 
sonable exactions  for  the  use  of  a  public  highway  estab- 
lished and  maintained  under  legislative  authority.  *  *  * 
The  utmost  that  any  corporation,  operating  a  public  high- 
way, can  rightfully  demand  at  the  hands  of  the  legislature, 
when  exerting  its  general  powers,  is  that  it  receives  what, 
under  all  the  circumstances,  is  such  compensation  for  the 
use  of  its  property  as  will  be  just,  both  to  itself  and  to 
the  public." 

"We  hold,  however,  that  the  basis  of  all  calculations  as  to 
the  reasonableness  of  rates  to  be  charged  by  a  corporation 
maintaining  a  highway  under  legislative  sanction  must  be 
§  97 


LATER  CASES  ON  REGULATING  PRICES  AND  CHARGES.      313 

the  fair  value  of  the  property  being  used  by  it  for  the  con- 
venience of  the  public.  And  in  order  to  ascertain  that 
value,  the  original  cost  of  construction,  the  amount  ex- 
pended in  permanent  improvements,  the  amount  and  mar- 
ket value  of  its  bonds  and  stocks,  the  present  as  compared 
with  the  original  cost  of  construction,  the  probable  earn- 
ing capacity  of  the  property  under  particular  rates  pre- 
scribed by  statute,  and  the  sum  required  to  meet  operating 
expenses,  are  all  matters  for  consideration,  and  are  to  be 
given  such  weight  as  may  be  just  and  right  in  each  case. 
We  do  not  say  that  there  may  not  be  other  matters  to 
be  regarded  in  estimating  the  value  of  the  property. 
What  the  company  is  entitled  to  ask  is  a  fair  return  upon 
the  value  of  that  which  it  employs  for  the  public  conveni- 
ence. On  the  other  hand,  what  the  public  is  entitled  to 
demand  is  that  no  more  be  exacted  from  it  for  the  use  of  a 
public  highway  then  the  services  rendered  by  it  are  reason- 
ably worth." 

But  in  every,  case,  in  which  the  reasonableness  of  a 
police  regulation  of  rates  and  charges  is  the  ground  for  at- 
tacking its  constitutionality,  it  would  seem  natural  to  hold 
that  the  burden  is  on  the  carrier,  elevator  company,  or  other 
person,  who  is  affected  by  the  regulation,  to  prove  that  the 
maximum  rate  is  unreasonable.  This  would  be  only  a 
special  application  of  the  general  rule  of  constitutional 
interpretation  and  construction,  that  a  court  will  hold  to 
the  presumption  in  favor  of  the  constitutionality  of  a  legis- 
lative act,  unless  it  has  been  forced  to  declare  it  unconstitu- 
tional by  the  removal  of  every  reasonable  doubt.  Certainly, 
it  is  not  unconstitutional  for  the  legislature  to  declare  the 
establishment  by  the  legislature  of  a  maximum  rate  to  be 
prima  facie  evidence  of  its  reasonableness.1 

But  while  reasonable  regulations  of  rates  and  charges  can 
be  enforced  against  corporations  in  general  notwithstanding 

1  Chicago  B.  &  Q.  Ry.  Co.  v.  Jones,  149  111.  361. 

§    97 


314  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

the  Dartmouth  College  Case,1  they  cannot  be  made  to  apply 
to  corporations,  which  are  operating  under  charters,  in 
which  the  rates  of  compensation  for  the  services  of  the  cor- 
porations to  the  public  are  expressly  fixed.  The  stipula- 
tion in  the  charter  of  the  rate  of  compensation  constitutes 
a  part  of  the  contract  between  the  State  and  corporation, 
which  cannot  be  abridged  or  altered  by  subsequent  legisla- 
tion,2 unless  the  power  to  amend  the  charter  is  expressly 
reserved ;  and  then  the  subsequent  regulation  of  charges  by 
such  corporations  must  be  valid,  as  an  amendment  of  the 
charter.3 

Individuals  may  also  have  rights,  which  may,  on  the 
other  hand,  interfere  with  the  legislative  authorization  to  a 
corporation  to  make  charges  for  its  services.  This  propo- 
sition was  laid  down  as  law,  in  a  case,  where  the  legislature 
authorized  a  turnpike  company  to  exact  toll  from  the  citi- 
zens of  a  town,  who  were  exempted  from  paying  toll  by 
the  charter  of  the  company.  The  act,  authorizing  the 
collection  of  toll  of  these  citizens,  was  held  to  be  an 
unconstitutional  interference  with  their  vested  rights.4 

1  See  Tiedeman's  Unwritten  Constitution  of  the  United  States,  p.  64 
et  seq.,  and  post,  Chapter  XV, 

2  Railway  Co  t>.  Smith,  128  U.  S.  174;  Chicago  &  Grand  Trunk  By.  Co. 
v.  Wellman,  143  U.  S.  339;  Regan  v.  Trust  Co.,  154  U.  S.  362. 

3  Central  Trust  Co.  v.  Citizens'  Street  Ry.  Co.,  82  Fed.  1.     See  City  of 
Indianapolis  v.  Navin,  151  Ind.  139,  in  which  the  Supreme  Court  of  In- 
diana held  that  the  express  stipulation  in  the  general  law  of  incorporation 
of  the  right  of  street  railways  to  fix  their  rates  of  fare  did  not  prevent 
the  subsequent  reduction  and  regulation  of  rates  of  fare  by  a  general  law, 
even  though  that  law  was  not  enacted  as  an  amendment  of  the  charter. 
In  the  case,  supra,  of  Central  Trust  Co.  ».  Citizens'  Street  Ry.  Co.,  the 
same  regulation  of  the  rates  of  fare  of  the  Indianapolis  street  railways  was 
held  to  be  unconstitutional,  in  that  the  regulation  was  not  an  amendment 
to  the  charter,  and  that  to  be  such  an  amendment,  it  would  have  to  be 
made  to  apply  to  all  street  railways  which  had  been  incorporated  under 
the  general  law  of  incorporation,  which  contained  the  stipulation  that 
the  railways  shall  have  the  right  to  fix  their  rates  of  fare. 

4  Louisville  4  T.  Turnpike  Co.  v.  Boss  (Ky.),  44  S.  W.  981. 

§    97 


POLICE    REGULATION    OF   THE    LABOR    CONTRACT.         315 

§   98.   Police  regulation  of   the  labor  contract.  —  In 

no  phase  of  human  relations  is  there  a  more  widespread 
manifestation  of  legislative  determination  to  interfere  with 
and  to  restrict  the  constitutional  liberty  of  contract,  than  in 
the  contract  for  labor  between  employer  and  employee.  If 
the  American  declaration  of  the  equality  of  all  men  before 
the  law  was  a  reality,  and  all  that  was  necessary  to  insure 
substantial  equality  was  to  prevent  the  government  from 
showing  favors  and  granting  privileges  to  one  class  to  the 
exclusion  of  the  others,  there  would  be  no  need  of  any  un- 
usual interference  with  the  liberty  of  contract  between  the 
employer  and  employee.  For,  since  the  employer  and 
employee  are  equally  guaranteed  that  liberty  of  contract, 
which  is  justly  considered  the  badge  of  a  freeman,  each  is 
absolutely  free  to  make  whatever  contract  he  sees  fit,  and 
to  refuse  to  concede  to  the  terms  of  contract  the  other  may 
propose.  If  the  legal  equality,  which  is  declared  to  exist 
between  employer  and  employee,  was  a  reality,  instead  of 
a  legal  fiction,  the  laborer  would  not  seek  legislative  inter- 
ference in  his  contractual  relations  with  the  employer  more 
actively  than  does  the  employer.  He  would  felicitate  him- 
self upon  the  constitutional  right  to  accept  or  reject  the 
terms  of  employment  which  are  proposed  to  him.  But 
there  can  be  no  substantial  equality  between  the  man,  who 
has  not  wherewith  to  provide  himself  with  food  and  shelter 
for  the  current  day,  and  one,  whether  you  call  him  cap- 
italist or  employer,  who  is  able  to  put  the  former  into  a 
position  to  earn  his  food  and  shelter.  The  employer 
occupies  a  vantage  ground  which  enables  him,  in  a  majority 
of  cases,  to  practically  dictate  the  terms  of  employment. 
Liberty  of  contract,  unrestricted,  is  to  the  laborer  not 
always  an  unmixed  blessing.  He  wants  the  liberty  of  con- 
tract restrained  and  limited,  as  to  matters  which  are  detri- 
mental to  his  interests,  and  to  which  he  must  submit  under 
the  stress  of  circumstances,  while  he  is  left  at  liberty  to 
make  terms  which  will  be  favorable  to  him,  and  which  he 

§  98 


316  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

may  obtain  from  the  employer.  Hence  this  large  crop  of 
legislative  interference  with  the  labor  contract.  But  the 
constitutional  guaranty  of  liberty  of  contract  is  intended 
to  operate  equally  and  impartially  upon  both  employer  and 
employee ;  and  we  find,  therefore,  that  most  of  the  at- 
tempts at  legislative  interference  are  pronounced  unreason- 
able, and  hence  unconstitutional. 

The  disposition  of  the  courts  seems  to  be  to  pronounce 
any  regulation  of  the  labor  contract  unconstitutional  which 
does  not  have  for  its  object  the  preservation  of  the  health 
and  safety  of  the  workman,  or  his  protection  against 
fraud,  which  is  concealed  and  which  is  difficult  for  him 
to  detect  and  guard  against  by  his  own  unaided  efforts. 

§  99.  Regulation  of  wages  of  workmen  —  Mode  of 
measuring  payment — Compulsory  insurance  and  mem- 
bership in  benefit  societies  —  Release  from  liability  for 
injuries  to  employees.  — No  attempt  has  been  made  in  any 
of  the  United  States  to  stipulate  or  regulate  the  minimum 
wage  in  any  private  employment,  and  to  prohibit  any  con- 
tract which  provides  for  the  payment  of  a  smaller  amount. 
But  statutory  provisions  have  been  made  in  a  number  of 
the  States,  either  by  State  statute  or  municipal  ordinance, 
for  the  regulation  of  the  rate  of  wages  to  be  paid  by  the 
State  or  city  to  their  employees,  skilled  or  unskilled.  So 
far  as  these  regulations  are  only  stipulations  of  the  rate  of 
wage  which  the  government  will  pay  to  those  who  are  thus 
employed  by  government  officials,  and  prohibit  those 
officials  from  changing  by  express  contract  the  rate  of 
wage,  there  is  no  room  for  any  constitutional  question.  In 
establishing  such  a  regulation,  the  State  or  city  is  only  ex- 
ercising the  ordinary  common  law  power  of  a  principal  to 
direct  its  agent's  action  in  making  contracts  in  the  name  of 
the  principal.  But  if  the  regulation  goes  farther,  and  de- 
clares, as  many  of  them  do,  that  the  stipulated  rate  of 
wage  of  employees  on  government  work  shall  not  be  les- 
§  99 


REGULATION   OF   WAGES    OF   WORKMEN.  317 

sened  or  increased  by  contract,  whether  the  work  is  done 
under  the  supervision  of  government  officials,  and  the 
wages  paid  to  the  workmen  due  it  by  the  government ;  or 
such  work  is  let  to  private  contractors,  who  employ  and  pay 
the  workmen ;  the  liberty  of  contract  of  the  contractor  is 
unquestionably  infringed  by  such  a  regulation.  And  were 
it  not  for  the  rulings  of  the  courts  in  the  elevator  cases,1 
one  would  feel  confident  that  the  regulation  would,  so  far 
as  it  applied  to  contractors  for  government  work,  be  de- 
clared by  the  courts  to  be  an  unconstitutional  interference 
with  the  liberty  of  contract.2 

One  would  be  likely  to  think  that,  if  it  was  lawful  for  the 
State  to  regulate  the  rate  of  charges,  which  an  elevator  owner 
may  charge  for  the  storage  of  grain,  because  the  elevator, 
on  account  of  the  necessities  of  the  shipper,  was  a  virtual 
monopoly ;  it  would  be  equally  lawful  for  the  State  to 
regulate  the  rate  of  all  wages,  by  establishing  a  minimum 
rate  of  wages,  because  work  is  necessary  to  the  life  of  the 
workman  and  his  family,  and  the  possession  of  capital 
makes  the  capitalist  or  employer  a  virtual  monopolist. 

While  the  rate  of  wage  of  private  employees  is  univer- 
sally left  to  be  settled  by  the  terms  of  the  contract  made 
by  the  individual  employer  and  employee,  numerous  en- 
actments have  been  made  in  the  different  States,  which  are 
designed  to  control  the  rate  of  wage  in  a  collateral  way. 

A  good  illustration  is  that  of  the  regulation,  which  is 
found  in  many  of  the  mining  States,  of  the  mode  of  ascer- 
taining the  wages  of  the  miners,  who  are,  according  to  the 
terms  of  the  contract,  to  be  paid  a  sum  measured  by  the 
amount  of  coal  which  they  mine  per  day  or  per  week. 

1  See  Munn  v.  Illinois,  94  U.  S.  113,  and  other  cases,  fully  explained 
in  §§  96,  97. 

2  This  was  the  conclusion  of  the  Ohio  court,  in  regard  to  a  city  or- 
dinance, which  provided  that  all  specifications  for  public  work  shall 
require  the  contractor  to  pay  all  common  laborers  on  such  work  not  less 
than  $1.50  per  day.    State  v.  Norton,  5  Ohio  N.  P.  183. 

§   99 


318  REGULATION    OF   TRADES   AND   OCCUPATIONS. 

Some  of  these  regulations  require  only  that  the  coal  be 
weighed,  in  order  to  determine  the  exact  wages  due  to  the 
miner ;  while  others  require  that  the  coal  should  also  be 
weighed  before  it  is  screened,  and  prohibiting  the  enforce- 
ment of  the  miner's  contract  to  be  paid  by  weight  for  the 
amount  of  screened  coal  which  he  has  weighed.  Both  regu- 
lations have  been  held  by  some  of  the  courts  to  be  an 
unconstitutional  interference  with  the  liberty  of  con- 
tract.1 In  these  cases,  not  only  were  the  regulations 
held  to  be  unconstitutional,  because  they  constituted  an 
unlawful  interference  with  the  liberty  of  contract;  but  also 
because  it  was  a  special  law,  affecting  only  one  class  of 
people,  and  not  applicable  to  workmen  in  general.  If  the 
Illinois  court  is  correct  in  calling  such  an  act  a  special  law, 
which  is  inhibited  by  the  general  constitutional  provision 
against  the  enactment  of  special  laws,  no  attempt  at  regu- 
lating the  contractual  relations  of  employer  and  employee 
would  be  successful  in  evading  constitutional  objection ; 
for  the  reason  that  the  same  regulation  cannot  be  made  to 
apply  alike  to  all  employments ;  the  conditions  and  inter- 
ests of  employees  varying  indefinitely  with  the  nature  of 
the  employment.  But  there  cannot  be  much  doubt  that 
the  Illinois  court  is  not  in  harmony  with  the  general  trend 
of  judicial  opinion,  in  the  construction  and  scope  of  the 
constitutional  provision  against  the  enactment  of  special 

1  In  Millett  v.  People,  117  111.  294,  and  Harding  v.  People,  160  111.  459, 
it  was  held  that  the  State  had  no  right  to  require  the  quantity  of  coal 
mined  to  be  ascertained  by  weighing,  in  determining  the  wages  earned 
by  the  miner;  and  that  the  parties  could  agree  upon  some  other  method 
of  determining  the  quantity  of  coal.  See  Whitebreast  Fuel  Co.  v.  Peo- 
ple, 175  111.  51,  in  which  a  statutory  regulation  was  sustained,  which 
required  mine  owners  to  pay  the  miners  for  all  coal  mined,  including 
egg,  nut,  pea,  and  slack,  and  such  other  grades  into  which  coal  may  be 
divided,  at  such  prices  as  may  be  agreed  upon  between  the  parties.  In 
Ramsey  v.  People,  142  111.  380;  Commonwealth  ».  Brown,  8  Pa.  Super. 
Ct.  339;  43  W.  N.  C.  39,  and  In  re  House  Bill  No.  203,  21  Colo.  27,  the 
requirement,  that  the  coal  be  weighed  before  it  was  screened,  was  held 
to  be  constitutional. 
§  99 


REGULATION   OF  WAGES  OP  WORKMEN.  319 

laws.  A  law  is  not  special  which  includes  within  its  opera- 
tions all  persons  of  a  class,  to  which  its  provisions  can 
alone  be  applied.  If  that  were  the  true  construction  of 
this  clause  of  the  constitutions,  most  of  the  police  regula- 
tions of  trades  and  businesses,  as  well  as  of  property,  would 
be  unconstitutional  as  class  legislation.1 

If  these  laws,  regulating  the  ascertainment  of  miners' 
wages,  are  unconstitutional ;  they  are  so,  because  they,  as 
general  laws,  are  an  unconstitutional  interference  with  the 
liberty  of  contract  of  the  individual  employer  or  employee. 
But  judicial  opinion  is  not  unanimous  as  to  the  unconstitu- 
tionally of  these  laws.  In  a  West  Virginia  case,  a  law, 
which  required  coal  to  be  weighed  before  it  was  screened, 
in  order  to  determine  the  wages  of  the  miner,  was  sus- 
tained ;  and  it  was  held  that  it  did  not  violate  the  constitu- 
tional guaranty  of  "  enjoyment  of  life  and  liberty,  with 
the  means  of  acquiring  and  possessing  property,  and  of 
pursuing  and  obtaining  happiness  and  safety."2 

In  England  and  to  a  considerable  degree  in  the  United 
States,  the  large  railroad  corporations  have  instituted, 
under  their  supervision,  charitable  and  relief  associations 
among  their  employees;  the  associations  being  supported, 
and  the  relief  to  the  individual  employee,  in  case  of  sick- 
ness, injury  from  accident  or  death,  afforded,  by  the  con- 
tributions of  the  employees  out  of  their  wages.  So  far  as 
the  employee  is  left  free,  on  entering  into  the  employ  of 
the  railroad,  to  enter  into  such  associations  or  to  remain 
aloof,  there  is  no  room  or  excuse  for  legislative  interference. 

1  See  Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  575;  aff' g  s.  c.  136  Mo.  382, 
in  which  this  conception  of  what  constitutes  special  legislation  in  the 
constitutional  sense,  is  reaffirmed,  in  holding  that  a  State  regulation  of 
the  business  of  fire  insurance  is  unconstitutional,  on  account  of  being 
special  legislation,  because  it  refers  only  to  the  business  of  fire  insurance. 

*  Peel  Splint  Coal  Co.  v.  State,  36  W.  Va.  802.  See  to  the  same  gen- 
eral effect,  in  favor  of  the  constitutionality  of  these  laws,  Wilson  v.  State, 
(Kans.  App.)  53  P.  371. 

§    99 


320  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

But  the  beneficent  effects,  to  the  railroads  as  well  as  to  the 
employee,  are  so  apparent,  when  the  relief  associations  are 
successfully  managed  and  are  generally  patronized  by  the 
employees,  that  many  of  the  railroads  make  membership 
in  their  relief  associations  a  condition  precedent  to  the  con- 
tract of  employment,  and  refuse  to  employ  those  who  will 
not  subscribe  to  the  agreement.  They  also  reserve  the 
right  to  pay  the  dues  of  the  employee  out  of  his  wages. 
This  would  seem  to  be  a  very  reasonable  provision  for  the 
welfare  of  the  employee,  as  long  as  the  relief  association 
was  honestly  and  successfully  managed,  which  could  give 
rise  to  no  hostility  on  the  part  of  the  labor  organizations; 
if  one  does  not  realize  that  it  has  the  collateral  effect  of 
discouraging  strikes  for  higher  wages  and  better  terms  of 
employment,  and  encouraging  a  more  faithful  performance 
of  duties,  so  as  to  avoid  the  forfeiture  of  their  rights  as  a 
member  of  the  relief  association.  For  these  collateral  rea- 
sons, the  labor  organizations  have  procured  the  enactment 
in  some  of  the  States  of  laws,  which  prohibit  any  employer 
of  labor  from  making  contribution  by  the  employee  to  any 
charitable  or  relief  association,  a  condition  of  the  contract 
of  hiring.  It  would  seem  to  be  of  very  little  doubt,  in  the 
present  condition  of  judicial  opinion,  that  these  laws  would 
be  declared  to  be  unconstitutional,  as  an  unreasonable  inter- 
ference with  the  individual  liberty  of  contract.  Some  of 
the  regulations  of  the  railroads,  in  connection  with  their 
requirement  of  membership  by  all  their  employees  in  these 
relief  associations,  would  not  escape  constitutional  objec- 
tion. Thus,  for  example,  the  stipulation,  which  is  some- 
times exacted  of  the  railroad  employee  on  joining  the  relief 
association,  that  he  will  not  sue  the  railroad  company  for 
injuries  which  he  may  have  sustained  in  the  course  of  hia 
employment.  This  stipulation  is  illegal,  on  the  general 
principle,  that  a  contract  is  against  public  policy,  which 
constitutes  a  waiver  in  advance  of  all  claims  for 
§  99 


REGULATION   OF   WAGES   OF   WORKMEN.  321 

damages  which  result  from  the  negligence  of  another.1 
But  it  has  been  held  to  be  lawful  to  stipulate  that  the  re- 
ceipt of  the  benefits  from  the  relief  association  for  such 
injuries  shall  constitute  a  release  of  the  company  for  liabil- 
ity for  negligence,  where  the  benefits  are  a  substantial 
equivalent  of  the  claim  against  the  company.2  The  courts, 
however,  have  held  that  the  whole  subject  is  regulative  by 
positive  statute  ;  and  that  a  statute  is  constitutional,  which 
declares  void  any  stipulation  of  the  contract  of  hiring, 
which  in  any  way  restricts  the  liability  of  employers  for 
injuries  sustained  by  the  employee.3 

This  provision  for  compulsory  membership  in  railroad 
relief  associations  is  somewhat  like  the  provision  for  com- 
pulsory insurance,  which  is  to  be  found  in  the  laws  of  the 
German  Empire,  whereby  the  employer  is  required  to 
provide,  as  a  part  of  the  compensation  of  the  laborer,  a 
certain  amount  of  accident  and  life  insurance. 

§  100.  Regulation  of  wages  of  workmen,  continued  — 
Time  of  payment  —  Medium  of  payment  —  Fines  and 
deductions  for  imperfect  work  —  Mechanics'  lien  and 
exemption  of  wages.  — Another  very  common  regulation 
of  wages  is  the  statutory  requirement,  that  the  wages  shall 
be  paid  to  certain  enumerated  classes  of  workmen  at  stated 
periods,  in  some  cases  weekly,  in  others  bimonthly.  The 
object  of  such  legislation  is  to  protect  the  workman  against 
the  injustice  of  being  compelled  to  wait  an  undue  time  for 

1  Miller  v.  C.  B.  &  Q.  B.  R.  Co.,  65  Fed.  306;  Chicago  B.  &  Q.  Ry.  Co. 
».  Wvmore,  40  Neb.  645;  Chicago  B.  &  Q.  Ry.  Co.  v.  Bell,  44  Neb.  44. 

2  Lease  v.  Penn.  Ry.  Co.,  10  Ind.  App.  47;  Johnson  v.  Philadelphia  & 
Reading  Ry.  Co.,  163  Pa.  St.  127;  Ringle  v.  Penn.  Ry.  Co.,   164  Pa.  St. 
529;  Bait.  &  Ohio  R.  R.  Co.  v.  Bryant,  9  Ohio  C.  C.  332,  and  cases  cited 
in  preceding  note. 

8  Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co.  v.  Montgomery,  152  Ind.  1 ;  Pitts- 
burgh, C.  C.  &  St.  L.  Ry.  Co.  v.  Hosea,  152  Ind.  412;  Pennsylvania  Ry.  Co. 
t.Ebaugh,  152  Ind.  531;  Hancock  v.  Norfolk  &  W.  Ry.  Co.  (N.  C.  '99), 
32  S.  E.  679. 

21  §    100 


322  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

his  wages.  Some  of  these  regulations  are  limited  to  cor- 
poration employers,  while  others  apply  to  natural  persons 
as  well  as  to  corporations,  who  are  engaged  in  the  businesses, 
which  are  intended  to  be  brought  within  the  operation  of 
the  act.  In  all  of  them,  except  the  statute  of  Wisconsin, 
any  agreement  for  some  other  period  of  payment  is  de- 
clared to  be  illegal.  While  these  acts  are  professed  to  be 
for  the  protection  of  the  workman ;  and,  probably,  in  ordi- 
nary times  of  prosperity  and  activity  of  business,  it  is  a 
beneficial  regulation,  however  doubtful  the  necessity  for 
the  regulation  may  seem  to  most  minds ;  it  is  likewise  true 
they  may  in  times  of  money  stringency  and  slackness  of 
business  prove  a  source  of  the  most  serious  injury  and  suf- 
fering to  the  workman.  As  it  was  explained  by  the  court 
in  a  recent  case:1  "  An  illustration  of  the  manner  in  which 
it  affects  the  employee,  out  of  the  many  that  might  be 
given,  may  be  found  in  the  conditions  arising  from  the  late 
unsettled  financial  affairs  of  the  country.  It  is  a  matter  of 
common  knowledge  that  a  large  number  of  manufactories 
were  shut  down  because  of  the  stringency  in  the  money 
market.  Employers  of  labor  were  unable  to  continue  pro- 
duction for  the  reason  that  no  sale  could  be  found  for  the 
product.  It  was  suggested  in  the  interest  of  the  employ- 
ers, as  well  as  in  the  public  interest,  that  employees  consent 
to  accept  only  so  much  of  their  wages  as  was  actually  nec- 
essary to  their  sustenance,  reserving  payment  of  the  balance 
until  business  should  revive,  and  thus  enable  the  factories 
or  workshops  to  be  open  and  operated  with  less  present 
expenditures  of  money.  Public  economists  and  leaders  in 
the  interest  of  labor  suggested  and  advised  this  course.  In 
this  State,  and  under  this  law,  no  such  contract  could  be 
made.  The  employee  who  sought  to  work  for  one  of  the 
corporations  enumerated  in  the  act  would  find  himself 
incapable  of  contracting  as  all  other  laborers  might  do. 

1  Braceville  Coal  Co.  v.  People,  147  111.  66,  decided  in  1893. 
§  100 


REGULATION    OF    WAGES    OF    WORKMEN.  323 

*  *  *  The  employee  would,  therefore,  be  restricted 
from  making  such  a  contract  as  would  insure  to  him  sup- 
port during  the  unsettled  condition  of  affairs,  and  the  resi- 
due of  his  wages  when  the  product  of  his  labor  could  be 
sold.  They  would,  by  the  act,  be  practically  under 
guardianship  ;  their  acts  voidable,  as  if  they  were  minors ; 
their  right  to  freely  contract  for  and  to  receive  the  benefit 
of  their  labor  as  others  might  do,  denied  them." 

The  decisions  of  the  courts  as  to  the  constitutionality  of 
these  regulations  of  the  periods  of  payment  of  wages  are 
more  or  less  conflicting.  In  two  cases  they  are  declared  to 
be  constitutional,  whether  they  applied  to  corporations  or 
to  natural  persons.1  In  other  cases,  the  regulations  were 
held  to  be  constitutional,  so  far  as  they  undertook  to  con- 
trol the  payment  of  wages  to  employees  of  corporations, 
but  unconstitutional,  so  far  as  they  applied  to  the  employees 
of  natural  persons;2  while  in  a  number  of  cases,  the  reg- 
ulation is  declared  to  be  altogether  unconstitutional,  in  that 
it  was  an  unlawful  interference  with  the  individual  liberty 
of  contract.3 

1  Opinions  of  Justices,  163  Mass.  589;  Hancock  v.   Yaden,  121  Ind. 
366. 

2  Leep  v.  St.  Louis,  I.  M.  Ry.  Co.,  58  Ark.  407;  State  v.  Brown  & 
Sharpe  Mfg.  Co.,  18  R.  I.  16. 

8  Commonwealth  v.  Isenberg,  8  Kulp.  116;  4  Pa.  DIst.  579;  San  An- 
tonio &  A.  P.  Ry.  Co.  v.  Wilson  (Tex.  App.),  19  S.  W.  910;  Braceville 
Coal  Co.  v.  People,  147  111.  66.  In  the  Texas  and  Illinois  cases  cited, 
the  regulations  were  declared  to  be  unconstitutional,  not  only  because 
they  infringed  the  constitntional  liberty  of  contract,  but  likewise  because 
they  offended  the  constitutional  prohibition  of  special  legislation.  In  the 
Illinois  case,  the  court  says :  u  There  can  be  no  liberty  protected  by  gov- 
ernment that  is  not  regulated  by  such  laws  as  will  preserve  the  right  of 
each  citizen  to  procure  his  own  advancement  in  his  own  way,  subject 
only  to  the  restraints  necessary  to  secure  the  same  rights  to  all  others. 
The  fundamental  principle  upon  which  liberty  is  based  is  equality 
under  the  law.  It  has  accordingly  been  held  that  liberty,  as  that  term 
is  used  in  the  constitution,  means  not  only  freedom  of  the  citizen 
from  servitude  and  restraint,  but  is  deemed  to  enhance  the  right  of 
every  man  to  be  free  in  the  use  of  his  powers  and  faculties  and  to  adopt 
and  pursue  such  avocation  or  calling  as  he  may  choose,  subject  only 

§  100 


324  REGULATION  OF   TRADES    AND   OCCUPATIONS. 

If  the  protection  of  the  ignorant  and  unsuspecting 
against  the  fraud  and  oppression  of  another  is  ever  a  justi- 
fication for  the  police  regulation  of  the  liberty  of  contract, 
it  is  surely  justifiable,  when  it  takes  the  form  of  legisla- 
tion, which,  following  in  the  main  the  provisions  of  the 
English  Anti-truck  law,  have  prohibited  certain  classes  of 
employers,  especially  manufacturers  and  persons  and  cor- 
porations who  are  engaged  in  mining,  from  paying  their 
employees  in  orders  or  drafts,  which  are  redeemable  only 
in  goods  bought  at  the  stores  of  the  employers.  This 
legislation  is  designed  to  prevent  fraud  and  oppression  in 
charging  exorbitant  prices  for  the  goods,  which  under  the 
order  system  the  employee  is  obliged  to  buy  of  the  em- 
ployer. These  acts  generally  prohibit  the  payment  of 
wages  in  anything  but  lawful  money  ;  or  if  the  orders  are 
permitted  at  all,  they  are  required  to  be  redeemable  in  whole 
or  in  part  in  lawful  money,  at  the  option  of  the  employee. 
In  some  States,  the  statutes  prohibit  the  employers,  who 
are  included  within  the  operation  of  the  act,  from  keeping 
stores  in  conjunction  with  their  main  business  for  the 
supply  of  goods  to  the  employees. 

A  distinction  is  very  properly  made  between  an  act, 
which  prohibits  an  employer  from  keeping  a  truck  store  for 
the  use  and  convenience  of  his  employees,  and  one 
which  prohibits  an  employer  from  compelling  an  employee 

to  the  restraints  necessary  to  secure  the  common  welfare.  *  *  * 
Labor  is  the  primary  foundation  of  all  wealth.  The  property  which  each 
one  has  in  his  own  labor  is  the  common  heritage.  And,  as  an  incident  to 
the  right  to  acquire  other  property,  the  liberty  to  enter  into  contracts  by 
which  labor  maybe  employed  iu  such  way  as  the  laborer  shall  deem  most 
beneficial,  and  of  others  to  employ  such  labor,  is  necessarily  included  in 
the  constitutional  guaranty.  *  *  *  It  is  undoubtedly  true  that 
the  people  in  their  representative  capacity  may,  by  general  law,  render 
that  unlawful  in  many  cases,  which  had  hitherto  been  lawful.  But  laws 
depriving  particular  persons,  or  classes  of  persons,  of  rights  enjoyed  by 
the  community  at  large,  to  be  valid,  must  be  based  upon  some  existing 
distinction  or  reason,  not  applicable  to  others,  not  included  within  its 
provisions." 

§  100 


REGULATION  OF   WAGES    OF   WORKMEN.  325 

to  buy  from  the  stores  of  the  employer,  by  paying  his 
wages  in  orders,  which  are  redeemable  only  in  goods  bought 
at  the  store.  If  the  wages  of  the  employee  are  paid  in  law- 
ful money,  and  he  has  not  obligated  himself  to  purchase 
any  of  his  supplies  from  the  employer's  truck  store,  his 
personal  liberty  is  in  nowise  endangered  by  the  main- 
tenance of  a  truck  store,  adjacent  to  the  factory  or  works  ; 
and  the  store  may  prove  a  positive  benefit  to  him,  in  mak- 
ing it  unnecessary  for  him  to  go  a  long  distance  to  purchase 
what  he  and  his  family  may  need.  In  testing  the  consti- 
tutionality of  these  statutes,  and  distinguishing  between 
them,  by  a  consideration  of  their  relative  degrees  of  reason- 
ableness or  unreasonableness,  as  a  regulation  for  the  pre- 
vention of  the  practice  of  fraud  and  oppression  upon  the 
ignorant  and  helpless;  it  is  justifiable  to  pronounce  the  law 
unconstitutional,  which  prohibits  an  employer  from  keep- 
ing a  truck  store  for  the  service  of  the  employees ;  1  while 
the  law  is  declared  to  be  constitutional  which  prohibits  an 
employer  from  compelling  his  employees  to  deal  at  his 
store,  by  paying  their  wages  in  anything  but  lawful  money. 
Unless  the  position  of  the  text  of  preceding  sections  is  ad- 
hered to,  that,  under  the  doctrine  of  political  equality  of 
all  men,  and  the  inviolability  of  the  individual  liberty  of 

1  In  Frorers.  People,  141  111.  171,  and  State  v.  Coal  and  Coke  Co.,  33 
W.  Va.  188,  an  act  was  declared  to  be  unconstitutional,  which  prohibited 
miners  and  manufacturers  from  selling  merchandise  and  supplies  to  em- 
ployees at  a  greater  per  cent  profit  than  at  which  they  sell  to  others.  It 
was,  however,  held  by  the  court  to  be  class  legislation.  In  Frorer  v. 
People,  the  court  say:  "The  privilege  or  liberty  to  engage  in  or  control 
the  business  of  keeping  and  selling  clothing,  provisions,  groceries,  etc., 
to  employees  is  one  of  profit,  and  thus,  by  the  effect  of  these  sections 
(of  the  prohibitive  law),  what  the  employer  in  other  industries  may  do 
for  their  pecuniary  gain  with  impunity  and  have  the  law  to  protect  and 
enforce,  the  miner  and  manufacturer,  under  precisely  the  same  circum- 
stances and  conditions,  are  prohibited  from  doing  for  their  pecuniary 
gain.  The  same  act,  in  substance  and  in  principle,  if  done  by  the  one, 
is  lawful;  but  if  done  by  the  other,  is  not  only  unlawful,  but  a 
misdemeanor." 

$  100 


REGULATION   OF   TRADES    AND    OCCUPATIONS. 

contract,  the  possibility  that  the  man  of  superior  intelli- 
gence and  skill  will  take  undue  advantage  of  the 
weaker  vessel,  with  whom  he  is  contracting,  is  no  justifi- 
cation for  the  police  regulation  of  the  liberty  of  contract ; 
then  there  can  be  no  ground,  upon  which  these  statutes 
can  consistently  be  declared  unconstitutional,  except  that 
they  may  be  class  legislation  (as  to  which,  see  later)  ;  and 
that  objection  only  can  obtain,  when  the  legislation  is 
made  to  include  only  particular  classes  of  persons  and  cor- 
porations. If  the  legislation  is  universal  in  its  application 
to  all  employees,  the  legislation  ought  undoubtedly  to  be  de- 
clared a  constitutional  exercise  of  police  power.  And  such 
has  been  the  conclusion  of  a  number  of  the  cases.1 

It  is  to  be  observed  that  in  almost  all  of  the  cases,  in  which 
these  so-called  anti-truck  laws  have  been  held  to  be  uncon- 
stitutional, the  position  of  the  courts  has  been  made  to 
rest  upon  the  principle,  that  they  were  violations  of  the 
constitutional  prohibition  of  class  legislation,  in  that  they 
applied  to  only  a  class  of  persons;  making  that  unlawful, 
when  done  by  that  class  of  persons,  which  is  perfectly 
lawful  when  done  by  others.  In  these  cases,  the  statute 
generally  applied  to  persons  who  were  engaged  in  manufac- 
turing and  mining,  and  did  not  include  those  persons  and 
corporations  who  were  engaged  in  other  trades  and  busi- 
nesses, in  which  they  might  be  paying  their  employees  in 
orders  on  their  truck-stores.2 

1  la  re  House  Bill  No.  147,  23  Colo.  504;  Hancock  v.  Yaden,  121  Ind. 
366;  State  ».  Peel  Spirit  Coal  Co.,  36  W.  Va.  802;  Haun  v.  State  (Kans. 
App.),  54  P.  130.     In  an  earlier  case  in  West  Virginia,  State  v.  Goodwill 
Slate  &  Fire  Creek  Coal  Co.,  33  W.  Va.  179,  an  act  was  declared  to  be 
unconstitutional,  which  prohibited  persons  engaged  in  mining  or  manu- 
facturing from  paying  the  wages  of    employees   in   orders   on   their 
truck  stores,  on  the  ground  that  it  was  class  legislation.     In  the  case  in 
36  W.  Va.  802,  the  act,  under  inquiry,  applied  to  all  persons  or  corpora- 
tions, who  are  engaged  in  any  trade  or  business. 

2  The  West  Virginia  cases  are  cited  in  the  preceding  note.    The  Illi- 
nois case,  Frorer  v.  People,  141  111.  171  (see  preceding  note),  pronounced 
the  law  unconstitutional  which  prohibited  the  keeping  of  truck-stores  by 

§  100 


REGULATION    OF   WAGES    OF   WORKMEN.  327 

In  Pennsylvania,  although  the  act  applied  only  to  per- 
sons and  corporations,  who  were  engaged  in  mining  of  any 
kind  or  manufacturing,  the  Supreme  Court  pronounced 
the  act  to  be  unconstitutional,  on  the  general  ground  that 
it  was  an  unlawful  restriction  of  the  individual  liberty  of 
contract,  pronouncing  the  legislation  to  be  "  an  attempt 
by  the  legislature  to  do  what,  in  this  country,  cannot  be 
done;  that  is,  prevent  persons  who  are  sui  juris  from  mak- 
ing their  own  contracts."  1 

One  of  the  most  unreasonable  and  most  unjust  attempts, 
to  enhance  the  interests  of  the  average  workman  at  the  ex- 
pense of  the  employer,  is  to  be  found  in  legislation  in  a 
few  of  the  States,  which  prohibits  an  employer  from 
imposing  fines  on  the  employee,  and  making  deductions 
from  his  wages,  on  account  of  imperfect  or  careless  work 

manufacturers  and  miners.  The  court  say  in  part:  " The  privilege  of 
contracting  is  both  a  liberty  and  a  property  right,  and  if  A.  is  denied  the 
right  to  contract  and  acquire  property  in  a  manner  which  he  has  hitherto 
enjoyed  under  the  law,  and  which  B.  and  C.  are  thus  allowed  by  the  law 
to  enjoy,  it  is  clear  that  he  is  deprived  of  both  liberty  and  property  to 
the  extent  that  he  is  thus  denied  the  right  to  contract."  This  conclu- 
sion is  affirmed  upon  rehearing  in  Frorer  o.  People,  142  111.  387.  In 
Missouri,  where  the  statute  was  confined  in  its  application  to  persons, 
corporations  and  firms,  who  are  engaged  in  manufacturing  and  mining; 
in  the  first  hearing  of  a  case  coming  up  under  the  provisions  of  the 
statute,  the  Supreme  Court  of  the  State  denied  that  the  statute  was  class 
legislation,  or  was  an  unlawful  infringement  of  the  constitutional  liberty 
of  contract  in  general.  State  v.  Loomis  (Mo.),  20  S.  W.  Rep.  332.  But, 
upon  a  rehearing,  the  statute  was  declared  to  be  unconstitutional,  on  the 
ground  that  it  was  class  legislation,  in  that  its  provisions  did  not  apply 
to  all  kinds  of  trades  and  businesses,  but  only  to  two  or  more  enumerated 
kinds  of  employment.  State  v.  Loomis,  115  Mo.  307. 

1  "The  act  is  an  infringement  alike  of  the  right  of  the  employer  and 
the  employee;  more  than  this,  it  is  an  insulting  attempt  to  put  the  laborer 
under  a  legislative  tutelage,  which  is  not  only  degrading  to  his  man- 
hood, but  subversive  of  his  rights  as  a  citizen  of  the  United  States.  He 
may  sell  his  labor  for  what  he  thinks  best,  whether  money  or  goods,  just 
as  his  employer  may  sell  his  iron  or  coal,  and  any  and  every  law  that 
proposes  to  prevent  him  from  so  doing,  is  an  infringement  of  his  consti- 
tutional privileges,  and  consequently  vicious  and  void."  Godcharles  v. 
Wigeman,  113  Pa.  St.  431. 

§   100 


328  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

done,  or  of  injury  to  machinery.  In  the  absence  of  a  stat- 
ute, it  has  been  held  to  be  a  clear  right  for  an  employer  to 
impose  such  fines,  and  to  make  such  deductions,  where 
provision  is  made  for  them  in  the  contract  of  hiring.1 
Where  the  act,  prohibiting  such  fines  and  deductions, 
relates  only  to  one  or  more  kinds  of  employment,  and  is 
not  applicable  to  others,  it  would  seem  to  be  unconstitu- 
tional as  class  legislation.  And  so,  on  the  other  hand,  as 
in  the  Ohio  statute,  where  the  prohibition  only  applies  to 
the  case,  where  there  has  been  no  express  provision  for 
such  fines  and  deductions  in  the  contract  of  hiring,  there 
can  be  no  constitutional  objection  to  the  statute.  But  if 
the  law  should  be  made  to  apply  to  all  kinds  of  trades  and 
businesses,  and  should  deny  the  validity  of  any  express 
stipulation  in  the  contract  of  hiring  of  the  right  of  the 
employer  to  impose  such  fines  and  deduct  the  same  from 
the  employee's  wages;  the  conclusion,  in  the  light  of  the 
general  trend  of  judicial  opinion,  would  seem  to  be  un- 
doubted, that  the  legislation  was  unconstitutional  as  an  un- 
lawful restriction  of  the  individual  liberty  of  contract.  The 
leading  cases  on  this  subject  are  from  Massachusetts,  in 
which  State  the  regulation  was  made  to  apply  to  all  em- 
ployers of  weavers,  and  prohibited  fines  and  deductions 
from  wages  for  imperfections  arising  during  the  process  of 
weaving.  The  court  held  the  act  or  acts  containing  these 
regulations  to  be  an  unconstitutional  restriction  of  the  liberty 
of  contract;  but  adding  that  **  if  the  act  went  no  further 
than  to  forbid  the  imposition  of  a  fine  by  an  employer  for 
imperfect  work,  it  might  be  sustained  as  within  the  legisla- 
tive power  conferred  by  the  constitution  of  this  common- 
wealth." 2  In  Arkansas  a  statute  required  all  corporations 
and  persons  engaged  in  operating  and  constructing  railroads 

1  Birdsall  v.  Twenty-third  St.  Ry.  Co.,  8  Daly,  419;  Bowes  v.  Press, 
70  L.  T.  R.  116. 

2  Commonwealth®.  Perry,  155  Mass.  117;  Commonwealths.  Potomska 
Mills,  155  Mass.  122. 

§  100 


REGULATION   OF   WAGES    OF  WORKMEN.  329 

and  railroad  bridges,  and  contractors  and  sub-contractors 
who  are  engaged  in  the  construction  of  any  railroad  or 
railroad  bridge,  to  pay  the  employees  on  the  day  of  their 
discharge  the  unpaid  wages  still  due  at  contract  rate,  with- 
out abatement  or  deduction.  It  was  held  that  the  statute 
was  constitutional  so  far  as  its  provisions  apply  to  corpora- 
tions, and  unconstitutional  so  far  as  they  apply  to  natural 
persons,  such  as  contractors  and  sub-contractors.1 

A  variety  of  provisions  is  to  be  found  in  the  statute 
books  of  the  different  States,  having  for  their  object,  on  the 
one  hand,  the  protection  of  the  laborer  against  his  own 
indiscretion  in  making  debts  beyond  his  capacity  to  pay,  by 
exempting  his  wages  and  tools,  as  well  as  other  enumerated 
property  from  attachment  and  execution  for  his  debts;  and, 
on  the  other  hand,  to  secure  to  him  the  payment  of  his 
wages  through  all  the  financial  vicissitudes  of  his  employer, 
sometimes  by  giving  him  a  claim  for  his  wages  of  priority 
over  all  other  creditors  of  the  employer,  and  sometimes  by 
giving  him  a  lien  on  the  property  on  which  his  labor  has 
been  expended.  These  regulations,  varied  as  they  are, 
contain  no  new  principle  of  police  regulation,  and  should 
not  be  considered  as  involving  any  serious  constitutional 
question,  beyond  what  might  be  raised  in  any  other  case  of 
exemption  or  priority  of  lien  over  other  creditors.  The 
priority  laws  have  been  the  subject  of  litigation  in  two 
cases  ;  but  in  both  they  have  been  sustained  as  constitu- 
tional, so  far,  at  least,  as  they  affect  the  rights  of  creditors 
which  have  been  acquired  subsequent  to  the  enactment  of 
the  laws,  giving  the  priority  to  laborers.2 

1  Leep  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co. ,  58  Ark.  407;  Paul  v.  St.  Louis, 
I.  M.  &  S.  Ry.  Co.,  64  Ark.  83;  «.  c.  173  U.  S.  404.    In  affirming  the  decis- 
ion of  the  Supreme  Court  of  Arkansas,  the  Supreme  Court  of  the  United 
States  held  the  statute  to  be  constitutional,  as  an  amendment  to  the 
charter  of  the  railroad  company,  the  power  to  amend  or  repeal  such 
charter  having  been  reserved  by  the  State. 

2  Warren  v.  Solen,  112  Ind.  213;  Ripley  v.  Evans,  87  Mich.  217.     In  the 
latter  case,  the  laborer's  lien  for  wages  was  given  priority  over  the 

§  100 


330  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

But  in  Pennsylvania,  an  act  of  the  legislature  was  de- 
clared unconstitutional,  because  violative  of  the  indefeasi- 
ble right  of  acquiring,  possessing  and  protecting  property, 
which  provided  that  the  contractor  for  the  erection  of  a 
building  shall  be  deemed  to  be  the  owner's  agent,  and  that 
no  contract  between  them  that  no  lien  shall  be  filed  on  the 
property,  shall  prevent  the  claim  of  the  subcontractor  to  a 
mechanic's  lien  on  the  building,  unless  the  latter  agrees  in 
writing  to  be  bound  by  the  provisions  and  stipulations  of 
the  contract  between  the  owner  and  the  contractor.1  On 
the  other  hand,  in  Ohio,  laws  have  been  declared  to  be 
unconstitutional,  which  give  to  sub-contractors,  laborers 
and  material  men,  a  lien  on  the  property  of  the  owner  for 
wages  and  claims,  which  are  owing  to  them  by  the  con- 
tractor.2 The  position  of  the  Ohio  court  is  not  without 
soundness  in  that  all  such  liens  are  imposed  upon  one 
man's  property,  in  order  to  secure  the  performance  of 
another  man's  contracts.  Still,  the  fact  that  the  owner  is 
the  ultimate  beneficiary  of  the  labor  and  materials  which 
have  been  expended  upon  his  property,  the  mechanics'  lien 
law  only  throws  upon  the  owner  of  the  property  the 
burden  of  seeing  that  the  contractor  pays  his  bills,  and 
makes  the  owner  of  the  property  a  trustee  for  the  subcon- 
tractors, laborers  and  material  men.  But  is  it  justifiable  for 
the  State  to  impose  such  a  burden  upon  him? 

§  101.  Prohibition  of  employment  of  aliens  —  Export- 
ation of  laborers  —  Importation  of  alien  laborers  under 
contract  —  Chinese  labor  —  Employers  compelling  work- 
men to  leave  unions.  — The  labor  unions  strenuously  oppose 

mortgage  of  the  coal  mines,  which  had  been  given  after  the  enactment 
of  the  law. 

1  Waters  v.  Wolf,  162  Pa.  St.  153;  McMaster  v.  West  Chester  State 
Normal  School,  162  Pa.  St.  260;  Lea??.  Lewis, 7  Kulp,  164;  13  Pa.  Co.  Ch. 
Rep.  567. 

2  Palmer  v.  Tingle,  55  Ohio  St.  423;  Young  v.  Lion  Hardware  Co.,  55 
Ohio  St.  423. 

§   101 


PROHIBITION    OF    EMPLOYMENT    OF    ALIENS.  331 

the  increase  in  competition  of  labor  by  the  importation  of 
labor  into  the  State.  And  they  endeavor  by  private  agree- 
ments with  employers  to  prevent  such  importations.  But  in 
a  few  cases  they  have  attempted  to  secure  such  protection 
by  legislation,  both  State  and  Federal.  No  attempt  has  been 
made  by  State  legislation  to  restrain  importations  of  laborers 
from  another  of  the  United  States  ;  for  the  constitution  ex- 
pressly prohibits  such  legislation,  in  guaranteeing  that 
"  the  citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States."  l  The 
States,  however,  have  by  legislation  undertaken  to  protect 
native  labor  against  alien  labor.  But  in  each  case,  the 
legislation  has  been  declared  to  be  an  invasion  of  the  juris- 
diction of  the  United  States  government  and  an  unconsti- 
tutional interference  with  the  rights  of  resident  aliens.* 

1  Art.  iy.,  Sect.  2,  Const.  U.  S. 

2  ID  Pennsylvania,  a  statute  imposed  upon  the  employers  of  alien 
laborers  a  tax  of  three  cents  per  day  for  each  day  that  each  of  such 
laborers  may  be  employed,  and  authorized  the  employers  to  deduct  the 
tax  so  imposed  from  the  daily  wage  of  the  laborer.    The  act  was  held 
to  be  unconstitutional,  in  that  it  deprived  the  laborer  of  the  equal  pro- 
tection of  the  law,  in  violation  of  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States.     Fraser  v.  McConway  &  Torley  Co., 
82  Fed.  257.     See  Juniata  Limestone  Co.  v.  Fagley,  187  Pa.  St.  193.     A 
New  York  statute  made  it  a  crime  for  alien  laborers  to  be  employed  on 
public  works  by  a  contractor  who  is  constructing  them  under  contract 
with  a  municipal  corporation.     In  a  carefully  prepared  opinion,  Judge 
White  held  the  statute  to  be  void  and  unconstitutional  on  three  distinct 
grounds:  1.  Because  it  was  in  violation  of  the  constitution  of  New  York, 
Art.  I,  §  1,  which  declares  that  no  citizen  shall  be  deprived  of  any  of 
his  rights  or  privileges  except  by  the  law  of  the  land  or  the  judgment 
of  his  peers,  and  Art.  I,  §  6,  which  provides  that  no  person  shall  be  de- 
prived of  his  liberty  or  property  without  due  process  of  law.    2.  That 
it  was  in  violation  of  the  Fourteenth  Amendment  of  the  constitution  of 
the  United  States,  which  forbids  any  State  making  a  law  which  shall 
abridge  the  privileges  and  immunities  of  citizens  of  the  United  States, 
or  deprive  any  person  of  liberty  or  property  without  due  process  of  law; 
and  3.  (so  far  as  the  alien  laborers  were  Italians),  because  it  violated  the 
third  article  of  the  treaty  between  the  United  States  and  Italy,  which 
guarantees  to  resident  Italians  the  same  rights    and  privileges  which 
are  secured  to  the  citizens  of  the  United  States.    People  v.  Warren,  34 
N.  Y.  S.  942.  §  101 


332  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

But  Congress  has  passed  an  act  which  prohibits  the  im- 
portation into  this  country  from  foreign  lands  of  aliens 
under  contract  to  perform  labor  in  this  country.  So  long 
as  protective  tariffs,  which  interfere  with  the  citizen's  lib- 
erty of  contract  in  the  purchase  and  importation  of  foreign 
goods,  are  maintained  as  constitutional,1  it  is  but  natural 
and  just  that  the  courts  should  sustain  this  act  of  Congress, 
which  is  properly  described  as  a  protective  tariff  against 
foreign  labor,  which  has  assumed  the  absolutely  prohibitive 
form.  Such  has  been  the  decision  of  the  courts.2 

It  was  held  in  California,  that  a  city  ordinance  was  un- 
constitutional, which  made  it  a  misdemeanor  for  a  contrac- 
tor, engaged  in  work  for  the  city,  to  employ  Chinese 
laborers.3 

A  curious  case  of  an  attempt  to  prohibit,  by  the  impo- 
sition of  a  heavy  license  fee  ($1,000)  on  the  agent,  the 
exportation  of  laborers  from  the  State,  comes  from  North 
Carolina.  The  statute  was  held  to  be  unconstitutional ; 
not,  however,  on  the  ground  that  it  interfered  with  any 
provision  of  the  United  States  constitution,  but  because 
the  amount  of  the  license  fee  made  it  a  prohibitive  or  de- 
structive police  regulation,  which  was  not  justified  by  the 
innocent  and  harmless  character  of  the  business.* 

On  the  other  hand,  in  consequence  of  the  exactions  of 
labor  unions,  often  unjust  and  tyrannous,  employers  have 
frequently  stipulated  in  the  contract  of  hiring  that  the 
employee  shall  not  be  a  member  of  any  labor  union ;  and 
that  if  he  is  a  member  at  the  time  of  hiring,  he  must  sever 
his  connection  therewith,  as  a  condition  precedent  to  his 
employment.  It  would  seem  that  the  right  to  make  such 
a  stipulation  was  a  fundamental  part  of  the  guaranteed 
liberty  of  contract;  and  that  a  State  statute,  which  made 

1  As  to  which,  see  ante,  §  93. 

a  United  States  v.  Craig,  28  Fed.  795;  In  re  Florio,  43  Fed.  114. 

3  Ex  parte  Kubach,  85  Cal.  274. 

4  State  v.  Moore,  113  N.  C.  697. 

§  101 


REGULATING    HOUKS    OF    LABOR.  333 

it  unlawful  for  an  employer  to  refuse  to  employ  union  men, 
or  to  compel  an  employee  to  withdraw  from  a  trade  union 
on  pain  of  dismissal,  would  be  clearly  unconstitutional. 
And  that  has  been  the  decision  of  the  Missouri  Supreme 
Court.1  But  an  Ohio  court  has  sustained  such  a  law.2 

§  102.  Regulating  hours  of  labor.  —  The  leaders  of 
labor  organizations  have  endeavored  to  secure  better  terms 
of  employment  by  the  enactment  of  laws,  regulating  the 
hours  of  labor.  And  the  same  constitutional  questions 
arise  in  the  consideration  of  these  regulations  as  to  hours 
of  labor,  as  have  arisen  in  connection  with  the  statutory 
regulation  of  wages,  and  other  terms  of  the  contract  of 
hiring.  The  same  principles  of  constitutional  law  must 
determine  their  constitutionality.  In  almost  every  State 
there  are  regulations  of  this  kind,  varying  in  their  scope, 
both  as  to  persons  and  occupations,  and  it  is  believed  that 
in  no  State  has  any  law  been  passed  which  prohibits  em- 
ployees generally  from  working  any  one  day  be- 
yond the  statutory  number  of  hours.  Such  a  bill  was 
proposed  by  the  Legislature  of  Colorado;  but  it  was 
before  enactment  declared  to  be  unconstitutional  by  the 
Supreme  Court,  on  the  ground  that  it  was  in  viola- 
tion of  the  constitutional  liberty  of  contract.3  In  every 
other  case  of  regulation  of  the  hours  of  labor  in  private 
employment,  the  statute  does  not  prohibit  work  for  more 
than  the  statutory  time,  but  requires,  in  case  of  being  re- 
quired to  work  longer,  that  extra  compensation  be  paid; 
and  in  some  cases,  that  the  wages  for  the  overtime  be  at  a 
higher  rate.  So  far  as  the  legislature  undertakes  to  say 
what  shall  be  considered  a  day's  work,  in  the  absence  of 
an  express  or  implied  contract,  there  is  no  more  interfer- 
ence with  the  liberty  of  contract,  than  where  statutes  pro- 
vide what  rates  of  interest  shall  be  paid  on  notes  and  other 

1  State  v.  Julow,  129  Mo.  163. 

8  Davis  v.  State,  30  Wkly.  Law  Bui.  342. 

3  In  re  Eight-Hour  Law,  21  Colo.  29.  102 


334  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

monetary  obligations,  in  the  absence  of  an  express  agree- 
ment. But  where  the  statute  declares  what  hours  of  labor 
shall  constitute  a  day's  work,  and  makes  it  obligatory  that 
extra  compensation  shall  be  paid  for  overtime,  whether  it 
be  the  same  or  an  increased  rate  of  wage ;  the  constitutional 
objection  to  the  legislation,  as  being  an  infringement  of  the 
individual  liberty  of  contract,  is  just  as  strong,  as  where 
the  right  to  work  for  more  than  the  prescribed  time  is  de- 
nied altogether.  Both  employer  and  employee  are  prohib- 
ited from  contracting  for  a  longer  day's  work  for  the 
current  rate  of  wages.1 

In  those  States,  in  which  the  statutes  simply  prescribe 
what  shall  constitute  a  day's  work,  in  the  absence  of  an 
agreement  otherwise,  it  is  undoubtedly  the  right  of  the 
employee  to  demand  extra  wages  for  the  overtime  work, 
unless  there  has  been  an  express  or  implied  contract  be- 
tween the  parties  for  a  longer  day's  work.2  But  where  the 
established  custom  in  the  particular  trade  or  occupation  is  to 
work  for  a  longer  time  per  day  than  the  statutory  period, 
the  employee  is  presumed  to  know  of  such  usage  and  cus- 
tom, and  he  cannot  demand  extra  compensation  for  the 
overtime,  in  the  absence  of  an  express  contract  for  the 
same.3  Some  of  the  cases,  however,  hold  in  construing 
these  statutes  that  no  extra  compensation  can  be  demanded 
for  overtime  work,  unless  it  has  been  stipulated  for  in  the 
contract  of  hiring.4 

1  This  is  the  conclusion  of  the  court  in  Low  v.  Rees  Printing  Co.,  41 
Neb.  127;  Wheeling  Bridge  &  Term.   Ry.  Co.  v.  Gilmore,  8  Ohio  C.  C. 
658.    In  the  former  case,  as  in  many  other  cases,  of  labor  legislation, 
the  act  was  also  declared  to  be  constitutionally  objectionable,  because  it 
was  class  legislation,  in  that  it  excluded  from  its  operation  those  who 
were  engaged  in  farm  or  domestic  labor. 

2  Bachelder  v.  Bickford,  62  Me.  526. 

8  Luske  v.  Hotchkiss,  37  Conn.  219;  Bartlett  v.  Street  Ry.  Co.,  82 
Mich.  658;  Schnurr  v.  Savigny,  85  Mich.  144;  Helphenstine  v.  Hartig,  5 
Ind.  App.  172;  Grisell  v.  Noel  Bros.  Flour-Feed  Co.,  9  Ind.  App.  251. 

*  McCarthy  ».  Mayor  of  New  York,  96  N.  Y.  1;  Luske  v.  Hotchkiss, 
37  Conn.  219. 

§   102 


REGULATING  HOURS   OF   LABOR.  335 

Regulations  of  the  hours  of  labor  for  women  and  chil- 
dren do  not  rest  on  the  same  principles  altogether ;  and  they 
are  found  in  every  State.  In  most  cases,  the  regulations 
refer  to  work  in  factories  and  workshops.  The  same  ob- 
ject is  held  in  view  in  these  regulations,  as  in  regulations 
of  hours  of  adult  male  labor,  viz. :  to  prevent  oppression 
by  requiring  excessive  hours  of  labor,  to  the  moral  and 
physical  injury  of  the  laborer.  But  in  regulations  of  this 
kind,  relating  to  adult  male  labor,  we  are  confronted  by 
the  constitutional  declaration  of  the  equality  of  all  men, 
and  the  inalienable  liberty  of  contract.  It  does  seem  very 
absurd,  from  the  stand-point  of  individualism,  which  is  the 
fundamental  principle  of  the  American  public  polity,  and 
of  which  universal  male  suffrage  is  the  public  exponent, 
to  enact  laws  to  prohibit  a  man  from  contracting  for 
more  than  a  prescribed  day's  work,  and  at  the  same 
time  declare  him  to  be  the  political  equal  of  the 
employer.  But  children  and  women  are  not  placed  in  this 
political  dilemma.  The  right  of  participation  in  the  gov- 
ernment is  denied  to  both  ;  and,  except  so  far  as  modern 
statutes  have  changed  the  common  law  in  regard  to  married 
women,  both  have  had  their  right  to  contract  more  or  less 
restricted.  The  constitutional  guaranty  of  the  liberty  of 
contract  does  not,  therefore,  necessarily  cover  their  cases, 
and  prevent  such  legislation  for  their  protection.  So  far 
as  such  regulations  control  and  limit  the  powers  of  minors 
to  contract  for  labor,  there  has  never  been,  and  never  can 
be  any  question  as  to  their  constitutionality.1  Minors  are 
the  wards  of  the  nation,  and  even  the  control  of  them  by 
parents  is  subject  to  the  unlimited  supervisory  control  of 
the  State.2 

The  position  of  women  is  different.  While  women, 
married  and  single,  have  always  been  under  restrictions  as 
to  the  kinds  of  employment  in  which  they  might  engage, 

1  See  People  v.  Ewer,  141  N.  Y.  129. 
8  See  post,  §§  195,  196. 

§  102 


336  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

and  are  still  generally  denied  any  voice  in  the  government 
of  the  country,  single  women  have  always  had  an  unre- 
stricted liberty  of  contract,  and  the  contractual  power  of 
married  women  was  taken  away  from  them  on  the  ground 
of  public  policy,  in  order  to  unify  the  material  interests 
as  well  as  the  personal  relations  of  husband  and  wife. 
With  the  gradual  breaking-down  of  these  restrictions 
upon  the  right  of  married  women  to  contract,  there  seems 
to  be  no  escape  from  the  conclusion  that  the  constitutional 
guaranty  of  the  liberty  of  contract  applies  to  women,  mar- 
ried or  single,  as  well  as  to  men.  We  are,  therefore,  not 
to  be  surprised  to  find  the  courts  at  variance,  in  deciding 
upon  the  constitutionality  of  laws,  regulating  the  hours  of 
labor  for  women.  The  Supreme  Court  of  Massachusetts 
has  held  such  laws  to  be  constitutional,  on  the  ground  that 
women  are  still  more  or  less  under  the  tutelage  of  the 
State,  and  need  the  same  protection  of  the  State  against 
the  oppression  of  the  employer,  as  do  minors.1  On  the 
other  hand,  the  Supreme  Court  of  Illinois  holds  such  regu- 
lations to  be  an  unconstitutional  interference  with  the 
woman's  liberty  of  contract.2 

While  it  would  seem  to  be  the  settled  judicial  opinion 
that  it  is  unconstitutional  for  the  legislature  to  regulate  the 
hours  of  labor  by  taking  away  all  liberty  of  contract  in  the 
matter,  where  the  object  is  merely  the  protection  of  the  em- 
ployee against  the  exaction  of  a  disproportionate  amount  of 
work  for  the  wages  paid ;  the  courts  are  disposed  to  hold 
otherwise,  where  the  statutory  regulation  is  intended  to 
protect  the  safety  of  the  public,  or  the  health  of  the 

1  Commonwealth  v.  Hamilton  Mfg.  Co.,  120  Mass.  383. 

8  Ritchie  w.  People,  155  111.  101,  the  court,  applying  to  regulations  of 
the  hours  of  women's  work,  the  following  general  principle :  "  Labor  is 
property,  and  the  laborer  has  the  same  right  to  sell  his  labor  and  to 
contract  with  reference  thereto  as  has  any  other  property  owner.  In  this 
country  the  legislature  has  no  power  to  prevent  persons  who  are  sui  juris 
from  making  their  contracts,  nor  can  it  interfere  with  the  freedom  of 
contract  between  the  workman  and  the  employer." 
§  102 


REGULATING   HOURS   OF   LABOR.  337 

individual  employee,  from  the  dangers  threatened  by  the 
excessive  and  exhaustive  labor  of  the  workman.  Thus,  in 
New  York  it  has  been  held  to  be  lawful,  in  the  interest 
of  the  public,  if  not  in  that  of  the  workman,  for  the 
legislature  to  prohibit  railroads  from  permitting  or  re- 
quiring trainmen,  who  have  worked  twenty-four  hours, 
to  go  on  duty  again  until  they  have  had  eight  hours  rest. 
The  same  act  also  provided  that  ten  hours  work  out  of 
twelve  consecutive  hours  shall  be  a  day's  work,  and  that 
extra  compensation  shall  be  paid  for  the  work  done  in 
excess  of  that  prescribed  time.  The  act  was  held  to  be 
constitutional ;  and  the  sections  prescribing  what  shall 
be  a  day's  work,  it  was  held,  did  not  prohibit  any  addi- 
tional work  during  the  twenty-four  hours.1  So,  also,  the 
Utah  statute,  which  limited  the  hours  of  labor  in  all  under- 
ground mines  and  smelting  works,  except  in  cases  of 
emergency  when  life  and  property  were  in  imminent  danger, 
to  eight  hours  per  day,  was  held  to  be  constitutional  by  the 
Utah  courts,  as  well  as  by  the  Supreme  Court  of  the  United 
States  ;  the  latter  taking  the  position  that  the  State  had  a 
right  to  limit  the  hours  of  labor  in  all  unwholesome  em- 
ployments.2 

But  if  the  danger  to  the  health  of  the  workman  is  a  consti- 
tutional justification  for  such  an  interference  with  individual 
liberty  of  contract,  in  the  case  of  particularly  unwholesome 
employments  ;  the  same  reason  could  be  appealed  to,  only 
in  a  less  degree,  to  justify  the  regulations  of  the  hours  of 
labor  in  all  employments.  For  there  is  no  other  cause, 
equally  common  and  general,  of  impaired  health,  broken- 
down  constitutions  and  shortened  lives,  than  excessive,  and 
hence  exhausting  labor  ;  it  matters  not  whether  the  occupa- 
tion is  wholesome  or  unwholesome.  The  same  collision 

1  People  v.  Phyfe,  136  N.  Y.  554. 

2  Holden  v.  Hardy,  14  Utah,  71  (46  P.  756)  ;  s.  c.  169  U.  S.  366.      The 
Supreme  Court  did  not  undertake  to  pass  upon  the  constitutionality  of 
general  regulations  of  the  hours  of  labor,  where  the  employment  was 
not  unwholesome. 

22  §   102 


338  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

between  fact  and  theory,  as  to  the  legal  equality  of  all 
men,  again  blocks  the  way  to  a  rational  regulation  of  the 
unequal  relations  of  employer  and  employee. 

Another  common  form  of  statutory  regulation  of  the 
hours  of  labor,  is  the  provision  that  workmen  on  public 
works  shall  not  be  required  to  work  more  than  the  pre- 
scribed number  of  hours  per  day.  Where  the  regulation  is 
applied  to  the  employees  of  the  city,  county  or  State  gov- 
ernment, who  are  employed  and  paid  directly  by  these 
lespective  governments,  the  constitutionality  of  the  regula- 
tion can  not  be  questioned;  for  the  reason  that  these 
respective  governments,  in  enforcing  such  a  regulation, 
are  only  exercising  the  general  right  of  a  party  to  a  con- 
tract to  insist  on  a  certain  provision  in  the  contract  of  hir- 
ing. And  it  would  seem  also  to  be  rational  to  uphold  the 
regulation  as  a  constitutional  exercise  of  authority,  when 
it  is  applied  to  those  laborers  who  are  engaged  on  public 
works  in  the  employ  of  contractors  to  whom  the  work  has 
been  let  on  contract,  if  the  contract  has  been  let  after  the 
enactment  of  the  regulation.  The  requirement  as  to  the 
hours  of  labor  is  properly  considered  as  entering  into  and 
becoming  a  part  of  the  contract  between  the  government 
and  the  contractor.  And  this  has  been  the  conclusion  of 
the  New  York  Supreme  Court  in  one  case.1  In  California 
and  Ohio,  a  similar  statute  was  held  to  be  unconstitu- 
tional, as  interfering  with  the  liberty  of  contract.2  The 
United  States  courts  have  held  a  similar  Federal  regula- 
tion to  be  directory  only,  and  not  compulsory.3 

1  People  v.  Warren,   77  Hun,  120.    The  force  of  this  decision  has, 
however,  been  somewhat  diminished,  on  appeal  to  the  Court  of  Appeals, 
by  the  decision  of  the  latter  court,  holding  that  the  regulation  in  ques- 
tion did  not  apply  to  the  superintendent  of  the  contractor  company. 
People  v.  Beck,  144  N.  Y.  225. 

2  Ex  parte  Kubach,  85  Cal.  274:  State  ».  Morton,  5  Ohio  N.  P.  183. 

3  United  States  v.  Martin,  94  U.  S.  400.    In  United  States  v.  Ollinger, 
55  Fed.  959,  the  constitutionality  of  the  regulation  was  not  settled,  the 
court  holding  that  the  regulation  did  not  apply  to  the  defendant. 

6  102 


REGULATIONS  OF  FACTORIES,  MINES  AND  WORKSHOPS.     339 

§  103.  Regulations  of  factories,  mines  and  workshops — - 
Sweatshops.1  —  The  safety  and  health  of  a  large  body 
of  workmen,  gathered  together  in  one  place,  a  mine, 
factory  or  workshop,  are  peculiarly  endangered,  if  proper 
precautions  are  not  taken  by  the  employer  against  the 
sources  of  danger.  And,  everywhere,  we  find  statutes, 
both  varied  and  numerous,  which  require  employers  and 
the  owners  of  buildings  which  are  used  as  workshops,  and 
the  owners  of  mines,  to  do  certain  things,  which  are  de- 
clared by  statute  to  be  necessary  for  the  protection  of  the 
workman.  Inspectors  are  generally  appointed  to  see  that 
the  statutory  regulations  are  observed.  These  regulations 
in  the  main  are  all  reasonable  safeguards,  and  their  consti- 
tutionality has  been  rarely  questioned.2  An  enumeration 
and  explanation  of  them  is  for  that  reason  not  necessary  in 
this  place.  Some  of  these  regulations  are,  however,  in 
direct  opposition  to  the  old  common  law  theory  of  the  non- 
liability of  the  employer  for  injuries  sustained  by  the 
employee,  either  through  accident  or  the  carelessness  or 
negligence  of  the  fellow-servant.  And,  so  far  as  a  regula- 
tion does  have  the  effect  of  changing  these  rules  of  law,  an 
opportunity  for  questioning  its  constitutionality  might 
arise.  Thus,  the  constitution  of  Mississippi  provides  that 
"  knowledge  by  an  employee  injured  of  the  defective  or 
unsafe  character  or  condition  of  any  machinery,  ways,  or 
appliances  shall  be  no  defense  to  an  action  for  injury  caused 
thereby."  8  A  Pennsylvania  statute  required  owners  of  coal 
mines  to  employ  a  foreman,  who  shall  be  certified  by  a 
State  official  to  be  competent,  whose  duty  shall  be,  on  every 

1  See  post,  §  147,  for  a  further  discussion  of  sanitary  and  other  regula- 
tions of  premises  which  are  devoted  to  purposes  of  trade  and  work. 

a  In  New  York,  it  was  held  that  a  law,  prohibiting  the  manufacture  of 
cigars  in  a  tenement  house,  was  an  unconstitutional  interference  with 
personal  liberty.  In  the  matter  of  Jacobs,  98  N.  Y.  98.  See  post,  §  147, 
lor  a  full  presentation  of  this  case. 

8  This  provision  was  held  to  be  self-executing,  and  needed  no  statute 
to  put  into  operation.  Illinois  Central  Ry.  Co.  v.  Ihlenberg,  75  Fed.  873. 

§  103 


340  REGULATION    OF   TRADES    AND   OCCUPATIONS. 

alternate  day,  to  examine  every  working  place  in  the  mine 
and  direct  it  to  be  properly  secured,  and  to  permit  no  one 
to  work  in  an  unsafe  place  except  to  put  it  into  a  safe  con- 
dition. The  act  was  held  to  be  unconstitutional  in  that  it 
made  the  employer  liable  for  injuries  which  had  been  caused 
by  the  wrongful  act  of  a  fellow-servant.1 

§  104.  Period  of  hiring  —  Breach  or  termination  of 
labor  contract  —  Compulsory  performance  of  labor  con- 
tract —  Requirement  of  notice  of  discharge  —  Employers 
required  to  give  statement  of  reasons  for  discharge.  —  In 

the  vast  majority  of  employments,  the  labor  contract  does 
not  contain  any  stipulation  of  a  definite  term  of  service. 
The  contract  is  an  indeterminate  one  as  to  the  period  of 
service,  each  party  reserving  the  right  to  terminate  the 
same  at  will  and  at  any  time.  There  may,  however,  be  an 
express  agreement  as  to  length  of  employment  in  the  ordi- 
nary labor  contract,  as  in  any  other  contract  for  the  services 
of  one  of  the  parties  thereto.  It  is  probably  true  that  a 
contract,  by  which  one  agrees  to  render  certain  services  to 
another  during  his  entire  life,  might  be  declared  void  as 
being  tantamount  to  slavery  or  servitude,  which  is  declared 
to  be  unlawful  by  the  Thirteenth  Amendment  of  the  Consti- 
tution of  the  United  States.2  But  there  can  be  no  consti- 
tutional objection  to  a  labor  contract,  which  obligates  the 
laborer  to  render  certain  services  during  a  period  of  one, 
two,  three,  five,  ten  years,  or  any  other  definite  period  of 
time.  And  the  California  statute,  which  prohibits  the  en- 
forcement of  a  labor  contract,  other  than  a  contract  of 
apprenticeship,  beyond  the  term  of  two  years  from  the 
commencement  of  service  under  it,  may  very  reasonably 

1  Durkin  v.  Kingston  Coal  Co.,  171  Pa.  St.  193.    But  see  People  v. 
Smith,  108  Mich.  627,  where  it  was  held  that  the  State  may,  in  the  exercise 
of  the  police  power,  make  all  regulations  for  the  protection  of  those  who 
are  engaged  in  dangerous  employments. 

2  Phila.  Ball  Club  v.  Hallman,  8  Pa.  Co.  Ct.  51. 

§  104 


PERIOD    OF   HIRING.  341 

be  held  to  be  unconstitutional,  in  that  it  restricts  the  con- 
stitutional right  of  the  employee  to  make  his  own  contracts.1 
It  goes  without  saying  that  there  can  be  no  compulsory 
service,  where  there  has  been  no  contract  of  service  what- 
ever.9 And  since  the  ordinary  labor  contract  provides  for 
an  indeterminate  service,  either  party  may  terminate  the 
contractual  relation  at  his  will,  unless  there  are  statutory 
regulations  of  that  right,  which  constitutionally  restrain 
him.  But  in  the  absence  of  statutory  regulations,  there  is 
ordinarily  no  implication  of  law  of  a  determinate  term  of 
service  from  the  fact  that  the  labor  contract  provides  for 
the  payment  of  wages  at  stated  periods.  This  is  the  ex- 
planation of  the  supposed  discrimination  against  employers, 
in  the  refusal  of  the  courts  to  exercise  their  equity  powers 
in  compelling  an  employee  to  remain  in  the  service  of  the 
employer,  and  to  do  his  duty  under  the  labor  contract. 
The  term  of  service,  being  indeterminate,  it  may  be 
terminated  at  any  time  at  the  will  of  either  party,  and 
the  employee  cannot  be  compelled  by  injunction  to 
remain  in  service,  after  he  has  decided  to  leave,  and 
he  exercises  his  right  to  terminate  the  relation  of  mas- 
ter and  servant,  in  accordance  with  existing  provis- 
ions of  law  or  the  terms  of  the  labor  contract,  which 
may  prescribe  the  method  of  terminating  the  relation.3 
But  the  obligation  to  render  services  for  a  stated  period 
of  time  need  not  be  an  express  one.  It  may  be  implied 
from  the  nature  of  the  employment.  Thus,  it  has  been  a 

1  Cal.  Civ.  Code,  1980.    A  similar  provision  is  to  be  found  in  the  Mon- 
tana Code.    Mon.  Civ.  Code,  2675. 

2  In  re  Chung  Fat,  96  Fed.  202.     In  this  case,  an  alien  seaman  was 
impressed. 

3  Arthur  v.  Oakes,  63  Fed.  310;  11  C.  C.  A.  209;  Reynolds  v.  Everett, 
144  N.  Y.  189.     In  Southern  California  Ry.  v.  Rutherford,  62  Fed.  796, 
Judge  Ross  granted  an  injunction  to  compel  the  employees  of  a  railroad 
to  perform  their  duties  as  long  as  they  have  not  formally  quitted  their 
employment.    This  would  seem  to  involve  the  principle,  that  an  em- 
ployee cannot  compel  an  employer  to  discharge  him  and  that,  until  he 
quits  the  employment,  he  can  be  compelled  to  perform  his  duties. 

§  104 


342  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

very  general  rule,  probably  throughout  the  civilized 
world,  that  a  sailor,  who  has  signed  a  shipping  contract, 
may  be  compelled  to  specifically  perform  his  con- 
tract of  service.  And  that  his  arrest,  imprisonment, 
and  return  on  board  of  ship  may  be  resorted  to, 
in  order  to  compel  him  to  perform  his  contract.1 

1  In  Robertson  v.  Baldwin,  165  U.  S.  275,  it  was  held  that  the  Revised 
Statutes,  §§  4598,  4599,  which  authorized  the  apprehension,  imprison- 
ment and  return  on  board  ship  of  a  deserting  seaman  in  the  merchant 
marine,  do  not  contravene  the  prohibition  of  involuntary  servitude,  as 
set  forth  in  the  Thirteenth  Amendment  of  the  United  States  Constitu- 
tion. The  court  relied  upon  the  fact  that  the  compulsory  performance 
of  the  services  of  a  seaman,  who  had  shipped  under  sailing  contract, 
was  an  exception  to  the  general  law  which  had  antedated  the  constitu- 
tional provisions,  and  for  that  reason  -would  not  come  within  the 
provisions  of  the  constitutional  prohibition.  The  better  ground  would 
seem  to  be  that  a  seaman,  when  he  signs  shipping  articles,  undertakes  to 
render  certain  services  for  a  determinate  period;  and,  being  for  a  deter- 
minate period,  this  labor  contract  can  be  specifically  enforced  like  any 
other  contract.  It  is  not  true  that  courts  of  equity  have  in  the  past 
refused  to  enforce  specifically  contracts  for  personal  services,  where  the 
character  of  the  services  did  not  require  the  exercise  of  any  unusual 
skill.  The  rule  of  equity  has  been  that  a  mandatory  injunction  will  issue 
for  the  specific  performance  of  a  contract  for  personal  services,  where 
the  services  were  of  such  a  nature  that  the  court  could  secure  their 
specific  performance.  But  where  peculiar  skill  is  required  in  the  per- 
formance of  the  services,  the  courts  of  equity  have  refused  to  issue  an 
injunction,  lor  the  reason  that  they  cannot  by  any  process  of  the  court 
compel  the  exercise  of  the  necessary  skill.  Kemble  ».  Kean,  6  Sim.  333; 
Kimberley  v.  Jennings,  6  Sim.  340;  Manhattan  Mfg.  Co.  v.  N.  J.  Stock 
Yards,  etc.,  Co.,  22  N.  J.  Eq.  161 ;  Gallagher  v.  Fayette  Co.  R.  R.  Co.,  38 
Pa.  St.  102;  Hahn  v.  Concordia  Society,  42  Md.  460;  Smith  v.  McElwain, 
57  Ga.  247;  Bank  of  California  v.  Fresno,  etc.,  Co.,  53  Cal.  201.  But  the 
court  of  equity  has  in  such  cases  the  power  to  prevent  the  recalcitrant 
employee  from  engaging  with  another  in  a  similar  employment  during  the 
stipulated  term  of  service.  Jennings  v.  Brighton,  etc.,  Bd.,  4  De  G.  J.  & 
S.  735;  Wolverhampton,  etc.,  Ry.  v.  London,  etc.,  Ry.,  L.  R.  16  Eq.  433; 
Montague  v.  Flockton,  L.  R.  16  Eq.  189;  Donnell  v.  Bennett,  L.  R.  22  Ch. 
D.  835;  West.  U.  Tel.  Co.  v.  Union  Pac.  Ry.  Co.,  1  McCrary,  558;  West. 
U.  Tel.  Co.  v.  St.  Joe,  etc.,  Ry.  Co.,  1  McCrary,  565;  Hamblin  v.  Dinne- 
ford,  2  Edw.  Ch.  5,29;  Metropolitan  Exhibition  Co.  ».  Ewing,  42  Fed.  198; 
24  Abb.  N.  C.  419;  Daly  v.  Smith,  49  How.  P.  150;  Alleghany  Base  Ball 
Club  v.  Bennett,  14  Fed.  257;  McCaull  v.  Braham,  16  Fed.  37;  Healy  v. 
Allen, .38  La.  Ann.  867. 
§  104 


PERIOD   OF    HIRING.  343 

And  the  statutes  in  the  different  States  in  the  South,  which 
make  it  a  misdemeanor  for  a  farm  laborer  to  fail  to  perform 
his  duties,  and  desert  during  harvest  time,  may  be  sustained 
on  the  ground,  that  the  farm  laborer,  when  he  enters  into 
service  to  harvest  a  crop,  impliedly  enters  into  service 
for  the  time  necessary  to  complete  the  harvesting;  and  his 
desertion  without  cause  of  his  employment  before  the 
conclusion  of  his  term  of  service  may  be  prevented  by  any 
legal  remedy  which  the  legislature  may  deem  fit  and  appro- 
priate. In  Arkansas,  South  Carolina  and  Tennessee,  the 
statute  is  general  in  its  application  to  all  kinds  of  laborers, 
although  it  is  aimed  at  farm  laborers  in  particular.  In 
South  Carolina,  the  statute  provides  that  a  laborer,  who 
willfully  and  without  just  cause  fails  to  give  the  labor 
reasonably  required  of  him  by  the  terms  of  his  contract, 
or  in  other  respects  shall  refuse  to  comply  with  the  condi- 
tions of  his  contract,  shall  be  liable  to  fine  and  imprison- 
ment. The  statute  was  held  to  be  constitutional,  and  not 
repugnant  to  the  constitutional  prohibitions  of  involuntary 
servitude,  or  imprisonment  for  debt.1  A  recent  English 
statute  makes  it  a  penal  offense  for  a  workman  in  certain 
occupations  to  violate  his  labor  contract  by  refusal  to  work, 
and  provides  a  summary  remedy  for  enforcing  the  perform- 
ance of  the  contract.2 

In  the  absence  of  statutory  regulation,  either  party  to 
an  indefinite  contract  of  service  may  terminate  such  con- 
tract, and  therewith  the  existing  relation  of  master  and 
servant  without  any  previous  notice  to  the  other  party,  un- 
less the  contract  contains  an  express  stipulation  that  such 

1  State  v.  Williams,  32  S.  C.  123.  The  Arkansas  statute  reads:  "If 
any  laborer  shall,  without  good  cause,  abandon  his  employer  before  the 
expiration  of  his  contract,  he  shall  be  liable  to  such  employer  for  the  full 
amount  of  any  account  he  may  owe  him,  and  shall  forfeit  to  bis  employer 
all  wages  or  share  of  crop  due  him,  or  which  might  become  due  him 
from  his  employer."  The  Tennessee  statute  is  similar  in  phraseology 
and  terms. 

8  Reg.  v  Bunn,  12  Cox  C.  C.  316. 

§  104 


344  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

notice  shall  be  given ;  or,  perhaps,  unless  the  giving  of 
such  a  notice  is  an  established  usage  in  that  particular  oc- 
cupation. In  order  to  protect  themselves  against  sudden 
and  unexpected  strikes,  the  employers  are  generally 
requiring  such  an  agreement  of  their  employees. 
And  there  can  be  no  doubt  that  such  an  agreement 
can  be  enforced,  and  the  stipulated  penalty  exacted.1 
Statutes  have  been  passed  in  some  of  the  States  regu- 
lating this  matter  of  giving  notice  in  a  variety  of  ways.  In 
most  of  the  States,  where  such  regulations  obtain,  it  is 
provided  that  wherever  an  employee  is  required  by  the 
terms  of  his  contract  to  give  a  certain  notice  to  his  em- 
ployer of  his  intention  to  terminate  his  contract  of  service, 
the  employer  is  required  to  give  a  similar  notice  of  his 
intention  to  discharge  the  employee.  There  would  seem 
to  be  no  serious  doubt  of  the  constitutionality  of  such  laws. 
In  Louisiana,  steamboat  employees  are  required  by  stat- 
ute to  give  notice  of  their  intention  to  leave  ;  while  in  Texas 
a  statute  requires  railroads  to  give  their  employees  thirty 
days'  notice  of  their  intention  to  reduce  wages.  There  can 
be  little  doubt  that  statutes  requiring  notice  are  constitu- 
tional, if  they  are  made  mutually  binding  upon  the  em- 
ployer and  employee  ;  but  it  may  be  doubtful  whether  the 
Texas  statute  would  be  sustained.2  On  the  other  band,  in 
Connecticut  it  is  made  a  penal  offense  to  withhold  any 
part  of  the  wages  of  a  workman  who  leaves  his  position 
without  giving  the  contract  notice.  While  in  Arkansas  a 
law  has  been  sustained,  which  requires  railroad  corpora- 
tions to  pay  discharged  employees  their  wages  in  full  on 
the  day  of  discharge,  subject  to  the  penalty  of  double 

1  Harmon  v.  Salmon  Falls  Co.,  35  Me.  447;  Preston  v.  Am.  Linen 
Co.,  119  Mass.  400;  Walls  v.  Coleman,  34  N.  Y.  State  Rep.  283;  11  N.  Y. 
S.  907. 

8  See  Texas  cases,  cited  in  preceding  sections,  in  which  laws  regulat- 
ing particular  employments  have  been  declared  to  be  unconstitutional  aa 
class  legislation. 

§  104 


PERIOD    OF   HIRING.  345 

wages  for  each  day  thereafter  on  which  they  fail  to  make 
full  payment  of  the  wages  due.1 

In  some  of  the  States  —  Massachusetts  and  Georgia  — 
statutes  have  been  enacted,  which  require  certain  em- 
ployers, railroad,  express  and  telegraph  companies,  to 
furnish  a  discharged  employee,  when  he  demands  it,  a 
written  statement  of  the  cause  of  his  discharge.  Where 
the  labor  contract  provides  for  a  specific  term  of  hiring, 
this  regulation  might  be  held  to  furnish  the  laborer  only 
with  a  reasonable  assistance  in  proving  that  his  discharge, 
before  the  expiration  of  the  term  of  hiring,  was  without 
good  cause,  and  was  consequently  a  breach  of  the  contract. 
But  where  the  hiring  was  under  an  indefinite  contract,  the 
employer  has  the  right  to  dismiss  an  employee  at  any  time, 
with  or  without  good  reason  therefor;  and  the  regulation 
would  seem  to  serve  no  other  purpose  than  to  furnish  the 
trade  union,  of  which  the  discharged  employee  is  a  mem- 
ber, with  the  means  of  intimidating  the  employer  by 
threatening  to  take  up  the  cause  of  the  employee.  The 
statute,  in  such  cases,  would  be  reasonable,  only  upon  the 
principle,  that  an  employer,  under  an  indefinite  labor  con- 
tract, had  not  the  right  to  arbitrarily  discharge  an  em- 
ployee. In  passing  upon  the  constitutionality  of  the 
Georgia  statute  it  been  held  by  the  Supreme  Court  of  that 
State  that  unregulated  silence  is  as  much  of  a  constitutional 
right  as  liberty  of  speech  and  the  freedom  of  the  press. 
And  a  law,  which  compels  one,  against  his  will,  to  speak 
or  write  to  another,  is  as  much  of  an  infringement  of  con- 
stitutional liberty,  as  a  law  which  restrained  one's  liberty 
of  speaking  or  writing,  when  he  chose  to  do  so,  unless  the 
disclosure  was  required  in  the  interest  of  the  public.  And 
the  public  interest  is  not  promoted  by  a  compulsory  dis- 
closure of  the  reasons  for  the  discharge  of  an  employee. 

1  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Paul,  64  Ark.  83;  Kansas  City,  Ft.  8. 
&  M.  Ry.  Co.  v.  Boland,  64  Ark.  83;  Kansas  City,  Ft.  S.  &  M.  Ry.  Co.  o. 
Whiddick,  64  Ark.  83. 

§  104 


346  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

For  these  reasons,  the  statute  was  held  to  be  unconstitu- 
tional.1 

§  105.  Regulations  of  the  business  of  insurance. —  The 

business  of  insurance,  both  fire  and  life,  is  the  occasion  of 
a  most  extensive  and  far-reaching  regulation  by  statute  ; 
and  the  general  reason  for  the  extensive  regulation  of  this 
business  is  the  necessity  therefor  to  prevent  fraud,  mis- 
representation and  sharp  practice  on  the  part  of  the  in- 
surance company,  and  to  protect  the  insured  against  his 
own  negligence  in  not  reading  the  terms  of  the  contract  of 
his  insurance.  The  regulations,  which  have  for  their  pur- 
pose the  inspection  and  supervision  of  the  affairs  and  busi- 
ness of  the  insurance  companies,  in  order  to  insure  the 
honesty  and  solvency  of  the  companies  who  are  doing  busi- 
ness in  the  State,  and  to  prevent  companies  from  doing 
business  which  cannot  show  a  clear  bill  of  financial  health ; 
the  requirement  of  a  deposit  of  funds  with  the  State  of- 
ficer as  a  security  for  the  payment  of  death  and  fire  loss, 
as  well  as  other  claims  which  might  arise  on  the  policies 
against  the  companies ;  —  all  regulations  of  these  kinds  are 
reasonable  regulations  for  the  prevention  of  fraud  in  the 
insurance  business,  similar  to  the  general  regulations  of  the 
banking  business.  In  both  businesses,  on  account  of  their 
nature,  the  individual  is  obliged  to  repose  unquestioning 
confidence  in  the  company,  and  has  no  convenient  means  of 
satisfying  himself  as  to  its  financial  soundness.  Such 
regulations  are  undoubtedly  constitutional. 

But,  recently,  the  regulations  of  the  business  of  insur- 
ance have  been  greatly  extended;  and  State  laws  now 
undertake  to  prescribe  what  kind  of  a  contract  of  in- 
surance the  insured  can  agree  to  make.  In  some  of 
the  States ;  notably,  Michigan,  Minnesota,  North  Da- 
kota, and,  Pennsylvania,  official  forms  of  policies  are 
provided  by  statutes,  which  are  required  to  be  employed 

1  Wallace  v.  Ga.  C.  &  N.  By.  Co.,  94  Ga.  732. 
§  105 


REGULATIONS   OF   THE    BUSINESS   OF    INSURANCE.         347 

in  making  all  contracts  of  fire  insurance.  In  Wisconsin,  a 
statute  authorizes  the  insurance  commissioner  to  adopt  a 
printed  form  of  policy  for  fire  insurance,  limiting  his  power 
by  the  requirement  that  the  policy  he  prescribes  shall  be  as 
near  as  possible  to  the  form  which  had  been  adopted  in 
another  State.  This  statute  was  held  to  be  unconstitu- 
tional, because  it  was  a  delegation  of  legislative  power  to 
the  insurance  commissioner.1  In  some  of  the  States  it 
is  also  provided  that  the  amount  written  in  the  policy  shall 
be  the  amount  recoverable  in  case  of  loss,  and  that  the 
stipulation  of  the  policy,  that  the  actual  value  of  the 
property  at  the  time  of  loss  shall  be  the  measure  of 
damages,  shall  be  void  and  of  none  effect.  The  statute 
has  been  sustained  as  a  reasonable  regulation  on  the  ground 
of  public  policy.2  In  Missouri,  the  statute  prohibits  an 
insurance  company,  in  a  suit  for  the  recovery  of  the  face 
value  of  a  fire  insurance  policy,  from  denying  that  the 
property  insured  was  worth,  at  the  time  that  the  policy  was 
issued,  the  full  amount  for  which  it  was  insured.  The 
Supreme  Court  of  Missouri  sustained  the  constitutionality 
of  this  statutory  interference  with  the  right  of  private 
contract  in  its  application  to  all  new  policies,  and  to  old 
policies,  which  have  been  renewed  subsequently  to  the 
enactment  of  the  law.3 

Similar  regulations  by  statute  of  the  contracts  of  life 
insurance  obtain  in  many  of  the  States.  Thus,  it  is  com- 
mon for  warranties  in  life  insurance  contracts  to  be  declared 

1  Dowling  v.  Lancashire  Ins.  Co.,  92  Wis.  63. 

2  Riley  v.  Franklin  Ins.  Co.,  43  Wis.  449;  Am.  Queen  Ins.  Co.  v.  Leslie, 
47  Ohio  St.  1072;  Am.  Pire  Ins.  Co.  v.  State,  74  Miss.  24;  Phoenix  Ins. 
Co.  v.  Levy,  12  Tex.  Civ.  App.  46  (33  S.  W.  992) ;  Merchants'  Ins.  Co.  ». 
Levy,  12  Tex.  Civ.  App.  45  (33  S.  W.  999) ;  Dugger  v.  Mechanics  &  T. 
Ins.  Co.,  95  Tenn.  245. 

8  Daggs  v.  Orient  Ins.  Co.  of  Hartford,  Conn.,  136  Mo.  382,  a.  c.  172 
U.  S.  557.  In  affirming  the  decision  of  the  Missouri  court,  the  national 
Supreme  Court  also  declared  that  the  statute  in  question  was  not  ob- 
jectionable on  the  ground  that  it  was  special  legislation. 

§  105 


348  REGULATION    OF    TRADES    AND   OCCUPATIONS. 

by  statute  to  have  only  the  effect  of  representations;  and 
it  was  held  to  be  doubtful  whether  the  parties  could,  in  the 
face  of  the  statute,  waive  its  operation  by  an  express 
agreement  that  his  representations  shall  have  the  effect  of 
warranties.1  In  New  Jersey,  a  statute  provides  that  all 
contracts  of  insurance,  written  in  that  State,  shall  be 
governed  by  the  laws  of  that  State.2  In  Massachusetts,  a 
copy  of  the  signed  application  must  be  attached  to  the 
policy,  in  order  that  the  original  may  be  put  in  evidence 
in  any  suit  on  the  policy.3  The  most  common  statutory 
provision,  relative  to  life  insurance,  is  that  which  limits 
the  grounds  upon  which  a  policy  may  be  forfeited,  and  the 
extent  of  such  forfeiture. 

It  was  held  by  the  United  States  Supreme  Court,  that  the 
parties  cannot  by  express  contract  waive  the  operation  of 
the  statute,  which  is  mandatory;  and  that  its  provisions 
constitute  a  part  of  every  contract  of  insurance  which  is 
written  in  the  State,  whether  the  insured  wants  it  incor- 
porated or  not.* 

In  order  to  insure  the  fair  and  equal  treatment  of  all 
policy-holders,  a  Pennsylvania  statute  prohibits  any  dis- 
crimination in  favor  of  any  individual  in  the  gradation  of 
rates  of  premium  of  the  same  class  and  of  the  same  expecta- 
tions of  life,  and  makes  any  such  arbitrary  discrimination 
a  misdemeanor.  The  statute  has  been  declared  to  be  con- 
stitutional. Nor  can  it  be  fairly  characterized  as  unreason- 
able, or  as  a  wrongful  interference  with  the  liberty  of 

1  White  o.  Conn.  Mat.  L.  Ins.  Co.,  4  Dill.  177.    Bat  see,  contra,  In- 
surance Co.  v.  Currie,  13  Bush,  313. 

2  Mut.  Ben.  L.  Ins.  Co.  v.  Robison,  54  Fed.  580. 

3  Considine  v.  Metropolitan  L.  Ins.  Co.,  165  Mass.  462. 

*  Equitable  L.  Ins.  Co.  v.  Clements,  140  U.  S.  226.  In  this  case,  in 
the  Circuit  Court  (32  Fed.  273),  doubt  was  expressed  by  the  presiding 
judge  as  to  the  correctness  of  his  decision,  because  such  a  statute, 
when  obligatory,  might  constitute  an  unconstitutional  interference  with 
the  individual  liberty  of  contract.  But  no  such  doubt  is  expressed  by 
the  Supreme  Court. 

§  105 


REGULATIONS   OF   THE   BUSINESS    OF   INSURANCE.         349 

private  contract,  when  it  is  borne  in  mind  that  the  insurer 
is  a  corporation,  enjoying  extraordinary  privileges  as  a 
gift  from  the  State.1 

But  there  are  limitations  to  the  power  of  the  State 
to  regulate  insurance  contracts,  and  the  business  of  in- 
surance. One  limitation  is  that  of  the  equitable  prohibi- 
tion of  penalties  and  forfeitures.  A  Texas  statute  pro- 
vided that  whenever  an  insurance  company  of  life  or 
health  failed  to  pay  a  loss,  which  has  occurred  on  the 
policy,  within  the  time  after  notice  stipulated  in  the  policy; 
the  company  shall  pay  to  the  holder,  in  addition  to  the  loss, 
twelve  per  centum  of  such  loss,  together  with  all  reasona- 
ble attorney's  fees  which  have  been  incurred  in  the  prose- 
cution and  collection  of  the  claim.  The  statute  was  held 
by  the  Texas  Court  of  Civil  Appeals  to  be  unconstitutional. 
The  requirement  of  the  twelve  per  cent,  penalty  was  doubt- 
less the  chief  occasion  for  the  adverse  decision  of  the  court.2 

The  most  s-urprising  regulation  of  the  business  of  insur- 
ance is  to  be  found  in  the  New  York  statute,  which  makes 
it  a  crime  for  an  insurance  agent  to  allow,  as  an  inducement 
to  contract  for  insurance,  to  the  insured  a  rebate  on  the 
first  premium  of  a  policy  of  life  insurance.  In  the  Penn- 
sylvania statute,  which  is  referred  to  above,  the  prohibition 
of  discrimination  against  or  in  favor  of  individuals  is 
directed  against  the  insurance  company  and  controls  the 
terms  of  contract  of  insurance.  In  the  present  case,  the 
statute  prohibits  the  agent  to  pay,  practically  out  of  his 
own  pocket,  a  part  of  the  first  premium,  which  redounds 
to  the  benefit  of  the  insured,  in  the  form  of  a  rebate. 
This  statute  was  held  to  be  constitutional,  as  it  is  only  a 
part  of  the  extensive  regulation  of  life  insurance  for  the 
protection  of  policy  holders.3 

1  Commonwealth  v.  Morning  Star,  144  Pa.  St.  103. 

2  New  York  Life  Ins.  Co.  v.  Smith  (Tex.  Civ.  App.),  *1  S.  W.  680. 

3  People  v.  Formosa,  131  N.  Y.  478.    The  court  say:  "  The  nature  of 
insurance  contracts  is  such  that  each  person  effecting  insurance  cannot 

§  105 


350  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

It  is  probably  safe  to  say  that  the  judicial  indorsement 
of  the  constitutionality  of  these  statutory  regulations  of 
the  business  of  insurance  was  largely  influenced  by  the 
fact  that  insurance  companies  are  in  most  of  the  States, 
foreign  corporations,  who  are  obliged  to  submit  to  any 
regulations  of  their  business,  which  the  legislature  of  a 
State  may  in  its  discretion  see  fit  to  impose,  as  an 
absolute  condition  precedent  to  their  doing  business  at  all. 
Foreign  corporations,  are  not  citizens,  in  the  constitu- 
tional sense,  who  are  guaranteed  by  the  national  con- 
stitution equal  privileges  and  immunities  in  all  of  the 
States.1 

thoroughly  protect  himself.  He  is  not  competent  to  investigate  the 
condition  and  solvency  of  the  company  in  which  he  insures,  and  his 
contracts  may  run  through  many  years,  and  mature  only,  as  a  rule,  at 
his  death.  Under  such  circumstances,  it  is  competent  for  the  legisla- 
ture, in  the  interests  of  the  people  and  to  promote  the  general  welfare, 
to  regulate  insurance  companies  and  the  management  of  their  affairs, 
and  to  provide  by  law  for  that  protection  to  policy  holders  which  they 
could  not  secure  for  themselves.  *  *  *  The  business  of  life  insur- 
ance in  this  State  is  mainly  carried  on  by  insurance  companies  organ- 
ized by  law  and  minute  provisions  are  made  regulating  their  incorporation 
and  their  business;  and  a  department  of  the  State  government  has  been 
constituted  to  supervise  them.  The  corporations  organized  under  the  laws 
of  this  State  for  life  insurance  are  absolutely  under  the  direction  and  con- 
trol of  the  legislature.  It  may  specify  how  and  on  what  terms  they  may 
do  business  and  enact  laws  regulating  their  conduct  and  the  conduct  of 
their  agents  for  their  protection  and  the  protection  of  their  policy  holders, 
and  enforce  obedience  to  such  laws  by  such  penalties,  forfeitures  and 
punishments  as  it  may,  within  constitutional  limits,  prescribe.  As  all 
these  corporations  must  act  through  agents,  it  has  the  same  power  and 
authority  to  regulate  the  conduct  of  their  agents  as  it  has  to  regulate 
the  conduct  of  the  corporations  themselves.  *  *  *  We  have  not 
here  the  question  as  to  what  a  private  individual  may  do  in  the  con- 
duct of  his  private  business,  but  the  question  here  is  as  to  the  power 
of  the  legislature  over  corporations  and  their  agents."  *  *  * 

u  We  may  not  be  able  to  perceive  the  purpose  or  the  wisdom  of  this 
act .  It  is  sufficient  that  we  perceive  the  legislative  will  in  the  act,  and 
we  need  not  speculate  as  to  the  policy  which  prompted  it." 

1  See  State  v.  Stone,  118  Mo.  388. 

§  105 


USURY  AND  INTEREST  LAWS.  351 

§  106.  Usury  and  interest  laws.  —  It  has  long  been 
the  custom  in  England  and  in  this  country  to  regulate 
the  rate  of  interest. 

The  regulation  of  interest  may  be  of  two  kinds.  So 
far  as  the  legislature  undertakes  to  determine  what  rate 
of  interest  can  be  recovered  on  contracts  for  the  payment 
of  money,  in  the  absence  of  the  express  stipulation  of  the 
parties,  it  is  a  reasonable  police  regulation,  the  object  of 
which  is  to  aid  the  parties  in  effecting  settlements,  when 
they  have  not  previously  agreed  upon  any  rate  of  interest. 
If  the  parties  are  not  satisfied  with  the  statutory  rate,  they 
can  agree  upon  any  other  rate.  But  it  is  different  when  the 
legislature  undertakes  to  prescribe  what  rate  of  interest  the 
parties  to  a  contract  may  agree  upon.  The  rate  of  interest, 
like  the  price  of  merchandise,  is  determined  ordinarily  by 
the  relation  of  supply  and  demand.  Free  trade  in  money 
is  as  much  a  right  as  free  trade  in  merchandise.  If  the 
owner  of  the  property  in  general  has  a  natural  right  to  ask 
whatever  price  he  can  get  for  his  goods,  the  owner  of  money 
may  exact  whatever  rate  of  interest  the  borrower  may  be 
willing  to  give.  For  interest  is  nothing  more  than  the  price 
asked  for  the  use  of  money.  No  public  reason  can  be  urged 
for  imposing  this  restriction  upon  the  money  lender,  and  the 
utter  futility  of  such  laws,  in  attempting  to  control  the  rate 
of  interest,  is,  or  should  be,  a  convincing  proof  of  their 
unreasonableness.  It  has  been  suggested  that  originally 
these  laws  were  based  upon  the  fact  that  the  lending  of 
money  was  a  special  privilege.  "  The  practice  of  regu- 
lating by  legislation  the  interest  receivable  for  the  use 
of  money,  when  considered  with  reference  to  its  origin,  is 
only  the  assertion  of  a  right  of  the  government  to 
control  the  extent  to  which  a  privilege  granted  by 
it  may  be  exercised  and  enjoyed.  By  the  ancient  com- 
mon law  it  was  unlawful  to  take  any  money  for  the 
use  of  money;  all  who  did  so  were  called  usurers,  a 
term  of  great  reproach,  and  were  exposed  to  the  censure  of 

§  106 


352  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

the  church,  and  if,  after  the  death  of  a  person,  it  was  dis- 
covered that  he  had  been  a  usurer  while  living,  his  chattels 
were  forfeited  to  the  king,  and  his  land  escheated  to  the 
lord  of  the  fee.  No  action  could  be  maintained  on  any 
promise  to  pay  for  the  use  of  money,  because  of  the  unlaw- 
fulness of  the  contract.  Whilst  the  common  law  thus  con- 
demned all  usury,  Parliament  interfered,  and  made  it  lawful 
to  take  a  limited  amount  of  interest.  It  was  not  upon  the 
theory  that  the  legislature  could  arbitrarily  fix  the  compen- 
sation which  one  could  receive  for  the  use  of  property, 
which,  by  the  general  law,  was  the  subject  of  hire  for  com- 
pensation, that  Parliament  acted,  but  in  order  to  confer  a 
privilege  which  the  common  law  denied.  The  reasons  which 
led  to  this  legislation  originally  have  long  since  ceased  to 
exist;  and  if  the  legislation  is  still  persisted  in,  it  is  because 
a  long  acquiescence  in  the  exercise  of  a  power,  especially 
when  it  was  rightfully  assumed  in  the  first  instance,  is  gen- 
erally received  as  sufficient  evidence  of  its  continued  law- 
fulness." l 

But,  of  course,  this  reason  furnishes  no  justification  for 
the  present  existence  of  such  laws.  In  the  light  of  modern 
public  opinion,  the  lending  of  money  on  interest  is  in  no 
sense  a  privilege,  and  no  law  can  make  it  so.  The  biblical 
injunction  against  the  taking  of  interest,  and  the  fact  that 
the  original  money  lenders  of  Europe  were  Jews ;  in  other 
words,  respect  for  the  teachings  of  the  Bible  on  the  subject, 
and  hate  for  the  despised  Jew,  probably  combined  to  bring 
the  usury  laws  into  being.  In  the  Middle  Ages,  the  Jew 
had  no  rights  at  all.  Every  recognition  of  his  natural 
rights  was  a  privilege.  Suffice  it  to  say,  that  on  no  satisfac- 
tory grounds  can  usury  laws  be  justified.  But  their  enact- 
ment has  so  long  been  recognized  as  a  constitutional  exercise 
of  legislative  authority,  and  the  fact  that  they  become  dead 
letters  as  soon  as  enacted,  render  it  very  unlikely  that  the 

1  Field,  J.,  in  Munn  v.  Illinois,  94  U.  S.  136;   10  Bac.  Abr.  264. 
$  106 


PREVENTION    OF    SPECULATION.  353 

courts  will  pronounce  tnem  unconstitutional,  however  ques- 
tionable legal  writers  and  authorities  may  consider  them. 
Mr.  Cooley  says  that  the  usury  laws  are  "  difficult  to  defend 
on  principle;  but  the  power  to  regulate  the  rate  of  in- 
terest has  been  employed  from  the  earliest  days,  and  has 
been  too  long  acquiesced  in  to  be  questioned  now."1  I 
differ  with  the  learned  judge  in  his  opinion  that  long 
acquiescence  in  such  laws  precludes  an  inquiry  into  their 
constitutionality ;  but  will  readily  accede  that  the  easy 
evasion  of  them  makes  it  unimportant  whether  they  are 
questioned  or  not,  except  that  it  may  be  considered  as 
highly  injurious  to  enact  any  law  which  is  not  or  cannot  be 
enforced,  in  that  the  successful  defiance  or  evasion  of  a 
particular  law  tends  to  lessen  one's  reverence  for  law  in 
general. 

It  has  been  held  recently  that  a  statute  authorizing 
building  and  loan  associations  to  charge  what  would  under 
the  general  usury  laws  be  usurious  rates  of  interest,  is  not 
unconstitutional  as  class  legislation.2 

§  107.  Prevention  of  speculation.  —  Free  trade  is  an  un- 
doubted constitutional  right.  Every  man  has  the  consti- 
tutional right,  not  only  to  determine  with  whom  he  will 
have  business  dealings,  and  to  whom  he  shall  offer  his 
goods  or  his  services,  but  he  also  has  the  right,  in  most 
cases,  whether  he  shall  offer  them  to  any  one  at  all.  He 
may  refuse,  without  giving  any  reasons,  to  sell  his  goods 
or  to  tender  his  services.  He  cannot  ordinarily  be  com- 
pelled to  do  either.  The  only  exceptions  that  suggest 
themselves,  are  cases  in  which  the  right  of  eminent  do- 
main is  exercised,8  and  those  in  which  the  State  in  the 

1  Cooley's  Principles  of  Const.  Law,  p.  235. 

2  Iowa  Savings  &  Loan  Assn.  v.  Heidt,  107  Iowa,  297;  Zenith  Building 
and  Loan  v.  Heimbach  (Minn.  '99),  79  N.  W.  609.    But  see  Gordon  9. 
Winchester  Building  &  Loan  Assn.,  75  Ey.  110. 

3  See  post,  §  139. 

23  §    107 


354  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

emergency  of  war  makes  forced  sales  of  the  property  of 
private  individuals  for  war  purposes,1  and  all  cases  of 
compulsory  performance  of  duties  to  the  State.  In  all 
other  cases  a  man  cannot  lawfully  be  compelled  to  part 
with  his  property,  or  to  render  services  against  his  will. 
Circumstances  may  conduce  to  make  a  particular  business 
a  virtual  monopoly  in  the  hands  of  one  man  or  one  part- 
nership. But  I  apprehend  that  he  cannot  for  that  reason 
be  subjected  to  police  regulation.  Because  one  man  has 
the  capital  wherewith  to  buy  up  all  the  corn  or  wheat 
in  our  great  Western  markets,  and  to  cause  in  con- 
sequence a  rise  in  the  values  of  these  commodities,  does  not 
justify  State  interference  with  his  liberty  of  action,  any 
more  than  would  police  regulation  of  the  whole  capital- 
ist class  be  permissible.  And  yet  this  one  man  occupies 
an  economical  position,  differing  only  in  degree  from  the 
capitalists  as  a  class.  The  same  qualities  and  characteristics 
which  enable  him  to  become  a  capitalist,  will  urge  him  to 
make  the  most  of  the  wealth  he  has  accumulated  or  inher- 
ited, and  he  will  so  manipulate  it  as  to  increase  its  returns 
if  possible.  Each  successful  increase  in  the  returns  from 
capital,  increase  the  price  of  the  commodity,  in  the  manu- 
facturing or  preparation  or  handling  of  which  the  capital 
has  been  invested.  It  is  only  in  extraordinary  abnormal 
cases  that  any  one  man  can  acquire  this  power  over  his  fel- 
low-men, unless  he  is  the  recipient  of  a  privilege  from  the 
government,  or  is  guilty  of  dishonest  practices.  The  remedy 
for  the  first  case,  in  a  constitutional  government,  is  to  with- 
hold dangerous  privileges,  or  if  the  grant  of  them  is  condu- 
cive to  the  public  welfare,  to  subject  their  enjoyment  to 
police  regulation,  so  that  the  public  may  derive  the  benefit 
expected  and  receive  no  injury.  In  the  second  class  of 
cases,  a  rigid  prosecution  of  dishonest  practices  will  be  an 
efficient  remedy. 

1  See  post,  §  166. 
§  107 


PREVENTION   OF   SPECULATION.  355 

The  common  law  did  not  recognize  this  view  of  a  right 
to  be  free  from  police  regulation,  in  the  matter  of  trade. 
While  the  general  right  to  buy  and  sell  without  let  or  hin- 
drance was  recognized,  certain  sales  were  held  to  be  illegal, 
and  punished  as  misdemeanors,  which  are  exceedingly 
common  at  the  present  day,  and,  if  not  legal,  are  acknowl- 
edged by  the  commercial  world  as  legitimate  transactions. 
These  were  sales,  known  at  common  law  by  the  names, 
forestalling,  regrating,  and  engrossing.  Says  Blackstone: 
"  The  offense  of  forestalling  the  market  is  an  offense  against 
public  trade.  This,  which  (as  well  as  the  two  following)  is 
also  an  offense  at  common  law,  was  described  by  statute  5 
and  6  Edw.  6,  ch.  14,  to  be  the  buying  or  contracting  for 
any  merchandise  or  victual  coming  in  the  way  to  market ;  or 
dissuading  persons  from  bringing  their  goods  or  provisions 
there ;  any  of  which  practices  make  the  market  dearer  to 
the  fair  trade.  Regrating  was  described  by  the  same 
statute  to  be  the  buying  of  corn  or  other  dead  victual,  in 
any  market,  and  selling  it  again  in  the  same  market,  or 
within  four  miles  of  the  place.  For  this  also  enhances  the 
price  of  provisions,  as  every  successive  seller  must  have  a 
successive  profit.  Engrossing  was  also  described  to  be  the 
getting  into  one's  possession,  or  buying  up,  large  quantities 
of  corn  or  other  dead  victuals,  with  intent  to  sell  them 
again.  This  must,  of  course,  be  injurious  to  the  public, 
by  putting  it  in  the  power  of  one  or  two  rich  men  to 
raise  the  price  of  provisions  at  their  own  discretion. 
And  so  the  total  engrossing  of  any  other  commodity 
with  an  intent  to  sell  it  at  an  unreasonable  price  is  an 
offense  indictable  and  finable  at  the  common  law."  *  In 
Russell  on  Crimes,2  these  offenses  are  stated  as  follows: 
"  Every  practice  or  device  by  art,  conspiracy,  words,  or 
news,  to  enhance  the  price  of  victuals  or  other  merchan- 

1  4  Bl.  Com.  154. 

3  1  Russ.  Crimes  (Grea.  Ed.),  168. 

§  107 


356  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

dise,  has  been  held  to  be  unlawful;  as  being  prejudicial 
to  trade  and  commerce,  and  injurious  to  the  public  in 
general.  Practices  of  this  kind  come  under  the  notion 
of  forestalling,  which  anciently  comprehended,  in  its  sig- 
nificance, regrating  and  engrossing  and  all  other  offenses  of 
the  like  nature.  Spreading  false  rumors,  buying  things 
in  the  market  before  the  accustomed  hour,  or  buying 
and  selling  again  the  same  thing  in  the  same  market,  are 
offenses  of  this  kind.  Also  if  a  person  within  the  realm 
buy  merchandise  in  gross,  and  sell  the  same  in  gross,  it 
has  been  considered  to  be  an  offense  of  this  nature,  on  the 
ground  that  the  price  must  be  thereby  enhanced,  as  each 
person  through  whose  hands  it  passed  would  endeavor  to 
make  his  profit  of  it."  As  stated  by  Blackstone,  these  acts 
are  no  longer  recognized  by  the  American  criminal  law  as 
offenses  against  the  public,  or  as  being  in  any  way  illegal. 
The  purchase  of  merchandise,  or  any  other  commodity, 
that  may  be  the  subject  of  sale,  expecting  a  rise  in  the 
price,  in  other  words,  speculation,  is  legal  whether  the  buyer 
intends  to  sell  again,  in  gross,  or  in  retail.  A  man  has  a 
constitutional  right  to  buy  anything  in  any  quantity,  pro- 
viding he  use  only  fair  means,  and  set  his  own  price  on  it, 
or  refuse  to  sell  at  all.  Where  one  man,  acting  independ- 
ently, does  this,  he  can  be  only  considered  guilty  of  a  wrong 
to  the  public,  when  he  secures  the  possession  of  these  things 
by  the  practice  of  fraud,  or  endeavors  by  false  reports  to 
enhance  the  price  of  a  commodity  which  he  offers  for  sale. 
These  are  distinct  acts  of  fraud  or  deception,  and  it  is  proper 
for  the  law  to  declare  them  illegal.  Further  the  law  cannot 
go.  Mr.  Bishop,  in  discussing  these  common-law  offenses, 
denies  that  regrating,  as  distinguishable  from  forestalling 
and  engrossing*  can  be  considered  a  criminal  offense  in  this 
country,1  but  he  recognized  the  other  two  offenses,  in  a 
modified  form.  In  respect  to  forestalling,  he  says:  "  In 

1  1  Bishop  Grim.  Law,  §  970 
§  107 


PREVENTION   OF   SPECULATION.  357 

reason,  the  essence  of  the  common  law,  on  the  subject  of 
forestalling,  considered  distinct  from  engrossing  and  regrat- 
ing,  seems  to  be,  that,  whenever  a  man,  by  false  news  or  by 
any  kind  of  deception,  gets  into  his  hands  a  considerable 
amount  of  any  one  article  of  merchandise,  and  holds  it  for 
an  undue  profit,  thereby  creating  a  perturbation  in  what 
pertains  to  the  public  interests,  he  is  guilty  of  the  offense  of 
forestalling."  l  As  stated  by  Mr.  Bishop,  the  common  law 
in  making  a  criminal  offense  of  forestalling  is  no  more  open 
to  constitutional  objection  than  the  punishment  or  prohibi- 
tion of  any  other  act  of  fraud  or  deception.  But  Mr.  Bishop's 
position,  in  regard  to  engrossing,  is  not  as  free  from  criti- 
cism. He  says:  "  Whenever  a  man,  for  the  purpose  of 
putting  things,  as  it  were,  out  of  joint,  and  obtaining  an  un- 
due profit,  purchases  large  quantities  of  an  article  of  mer- 
chandise, to  hold  it,  not  for  a  fair  rise,  but  to  compel  buyers 
to  pay  a  price  greatly  above,  as  he  knows,  what  can  be 
regularly  sustained  in  the  market,  he  may,  on  principle,  be 
deemed,  with  us,  to  be  guilty  of  the  common-law  offense 
of  engrossing."  2  It  is,  without  doubt,  an  immoral  act,  to 
ask  an  unconscionably  high  price  for  a  commodity,  taking 
advantage  of  the  pressing  wants  of  the  people ;  and  it  may, 
under  a  high  code  of  morals,  be  held  to  be  an  extortion,  for 
one  to  purchase  and  hold  merchandise  for  the  purpose  of 
gaining  from  its  sale  more  than  a  fair  profit;  but  it  cannot 
be  claimed  that  there  is  a  trespass  upon  the  rights  of  others 
in  doing  so,  or  that  the  rights  of  others  are  thereby  threat- 
ened with  injury.  One  is  simply  exercising  his  ordinary 
rights  in  demanding  whatever  price  he  pleases  for  his 
property.  But  apart  from  this  objection,  the  great  diffi- 
culty, if  not  impossibility,  in  ascertaining  what  is  an  ex- 
tortionate price,  and  the  practical  inability,  to  enforce  it, 
would  predetermine  such  a  law  to  become  a  dead  letter. 

1  1  Bishop  Grim.  Law,  §  968. 
8  Bishop  Crim.  Law,  §  969. 

§  107 


358  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

§  108.  Prevention  of  combinations  in  restraint  of 
trade. — While  the  manipulation  of  capital  by  single  in- 
dividuals cannot  threaten  the  public  welfare  by  the  general 
oppression  of  the  masses ;  when  two  or  more  people  com- 
bine their  energies  and  their  capital,  the  acquisition  of  this 
extraordinary  power  becomes  easier  and  more  common. 
In  fact,  it  may  be  stated  that,  practically,  combination  is 
absolutely  necessary  in  all  cases  to  its  acquisition.  But 
combinations  are  beneficial,  as  well  as  injurious,  according 
to  the  motives  and  aims  with  which  they  were  formed.  It 
is,  therefore,  impossible  to  prohibit  all  combinations.  The 
prohibition  must  rest  upon  the  objectionable  character  of  the 
object  of  the  combination.  One  of  these  objectionable 
objects  is  the  restraint  of  trade.  At  common  law,  and  it  is 
still  the  law  in  most,  if  not  all  of  the  States  [in  some  there 
are  statutory  regulations  on  the  subject],  all  unreasonable 
combinations  in  restraint  of  trade  were  unlawful,  and  no 
contracts,  founded  upon  the  combination,  would  be  en- 
forced by  the  courts.1 

It  is  necessary,  in  view  of  modern  statutory  legislation, 
to  accentuate  the  fact  that  at  the  common  law,  in  England 
and  in  the  United  States  alike,  contracts  were  not  neces- 
sarily void,  simply  because  they  were  in  restraint  of 
trade.  In  order  that  such  a  contract  may  be  declared 
void  at  the  common  law,  the  restraint  had  to  be  un- 
reasonable in  order  that  it  may  come  under  the  ban  of 
the  law.  It  is  undoubtedly  the  accepted  law  every- 
where, in  the  English-speaking  world,  that  any  contract  in 
restraint  of  trade,  which  is  unlimited  in  its  restrictions 
as  to  time,  place,  persons  and  circumstances,  is  void,  and 
the  courts  will  refuse  to  enforce  it,  or  to  recognize  any 

1  1  Hawk  Pleas  C.,  ch.  80,  §  1 ;  1  Bl.  Com.  150;  Rex  ».  Waddington,  1 
East,  43;  1  Smith's  Lead.  Gas.  867,381;  Langv.  Weeks,  2  Ohio  (N.  8.)  619; 
Thomas  v.  Tiles,  3  Ohio,  74 ;  Barry  v.  Croskey,  2  Johns.  &  H.  1 ;  Jones 
v.  Lees,  1  H.  &  N.  189;  Gulich  v.  Ward,  6  Halst.  87;  Benjamin  on 
Sales,  799. 

§  108 


PREVENTION  OF  COMBINATIONS  IN  RESTRAINT  OF  TRADE.  359 

cause  of  action  which  is  based  thereon.1  But  wherever 
the  contract  was  in  restraint  of  trade,  only  to  a 
limited  degree,  either  as  to  time,  persons,  place  or  other 
circumstance,  the  contract  was  held  to  be  valid  and 
enforceable,  because  the  limited  character  of  the  restric- 
tion prevented  it  from  coming  into  conflict  with  public 
policy ;  the  rational  and  beneficial  character  of  the  limited 
restriction  outweighing  the  supposed  injurious  effect  of  the 
restraint  of  trade  on  the  competition  which  is  said  to 
be  the  life  of  trade.2  The  question,  whether  the  contract 
is  in  unreasonable  restraint  of  trade,  is  one  of  law 
for  the  courts,  and  no  hard  and  fast  line  is  or  can 
be  laid  down  by  the  courts,  for  determining  a  priori 
whether  a  particular  contract  in  restraint  of  trade  is 
unreasonable  and  void,  or  reasonable  and  valid.  The 
limitations  as  to  time,  persons,  place  and  other  circum- 
stances are  considered  in  the  light  of  the  motive  of  the 
restriction,  in  order  to  determine  in  the  particular  case, 
whether  the  restraint  is  reasonable.3  The  cases  are  very 
numerous  in  which  contracts  in  restraint  of  trade  are 
declared  to  be  void  or  valid,  according  as  they  are  unrea- 

1  Hilton  v.  Eckersley,  6  Ellis  &  B.  47;  Mitchell  v.  Reynolds,  1  P.  Wms. 
181 ;  Homer  v.  Ashford,  3  Bins.  322 ;  Homer  v.  Graves,  7  Bing.  735 ;  Oregon 
Steam  Nav.  Co.  v.  Winsor,  20  Wall.  64;  Alger  v.  Thacher,  19  Pick.  61; 
Dean  v.  Emerson,  102  Mass.  480;  Ross  v.  Sadgbeer,  21  Wend.  166;  West- 
ern Woodenware  Association  v.  Starkey,  84  Mich.  76;  Heichowr.  Hamil- 
ton, 3  Greene  (Iowa),  596.     It  is  probably  true  that   in  England,  at  an 
early  day  and  in  the  first  enunciations  of  judicial  opinion  on  the  subject, 
all  contracts  in  restraint  of  trade  were  declared  to  be  void,  whether  they 
were  per  se  reasonable  or  unreasonable.    See  Dyer's  case,  Y.  B.  2  H.  5, 
PI.  22;  Colgate  v.  Batchellor,  Cro.  Eliz.  872. 

2  Whitaker  v.  Howe,  3  Beav.  383;  Dendy  t>.  Henderson,  11  Exch.  194; 
Leather  Cloth  Co.  v.  Lorsant,  L.  R.  9  Ex.  345;  Pierce  v.  Woodward,  6 
Pick.  206;  Saratoga  Co.  Bank  v.  King,  44  N.  Y.  87;  Curtis  v.  Gokey,  68 
N.  Y.  300;  Perkins  v.  Clay,  54  N.  Y.  518;  Treat  v.  Shoninger  Melodeon 
Co.,  35  Conn.  543;  Guerand  v.  Dandelet,  32  Md.  561;  Ellis  v.  Jones,  56 
Ga.  504 ;  Smalley  v.  Greene,  52  Iowa,  241. 

3  Rousillon  v.  Rousillon,  14  Ch.  D.  351;  Oregon  Steam  Nav.  Co.  v. 
Winsor,  20  Wall.  64. 

§  108 


360  REGULATION    OF   TRADES    AND   OCCUPATIONS. 

sonable  or  reasonable.  But  a  few  cases  will  suffice  for 
illustration.  The  contract  of  a  lawyer,  in  the  sale  of  his 
practice,  not  to  practice  in  Great  Britain,  was  held  to  be 
reasonable,  and  hence  valid.1  So,  also,  the  contract  not  to 
practice  one's  profession  or  to  carry  on  one's  business  in  a 
particular  town  or  county  and  its  vicinity.1  But  where  the  re- 
striction as  to  space  is  unreasonable  in  extent,  the  contract  in 
restraint  of  trade  would  be  held  to  be  unreasonable  and  void. 
Generally,  a  contract  not  to  carry  on  a  particular  business  in 
any  part  of  the  State  would  be  held  to  be  unreasonable.3 
Sometimes,  a  contract  in  restraint  of  trade  is  held  to  be 
reasonable  where  it  is  unlimited  as  to  space  but  limited  as 
to  time.  This  is  possible  only,  where  the  business  is  of 
such  a  character  that  any  limitation  of  the  restraint  as  to 
space  would  make  the  restriction  valueless  to  the  purchaser 
of  the  business.*  Other  cases  of  reasonable  contracts  in 
restraint  of  trade  may  be  cited,  which  are  not  directly 

1  Whittaker  v.  Howe,  3  Beav.  383. 

2  Butler  v.  Burleson,  16  Vt.  176;  Cook  v.  Johnson,  47  Conn.  176; 
Swanson  ».  Kirby,  98  Ga.  586;  McClurg's  Appeal,  8  Smith  (Pa.)  61; 
Hursen  v.  Gavis,  162  111.  377;  Kramer  v.  Old,  119  N.  C.  1;  Davis  v.  Brown 
(Ky.),  32  S.  W.  614;  Tillinghast  v.  Boothby,  20  R.  I.  69;  O'Neal  v.  Hines, 
145  Ind.  32;  Smith  v.  Brown,  164  Mass.  584;  McCurry  v.  Gibson,  108  Ala. 
451. 

*  Taylor  v.  Blanchard,  13  Allen,  370;  Dean  p.  Emerson,  102  Mass.  480; 
Nobles    v.    Bates,    7  Cow.    307;    More    v.    Bonnet,    40    Cal.   251.    In 
Althen  v.  Vreeland,  (N.  J.),   Eq. ;  36  A.  479,  a  contract,  not  to  carry 
on  a  business  within  a  radius  of  1,000  miles,  was  held  to  be  unreason- 
able.   And  so,  likewise,  in  Consumers'  Oil  Co.  v.  Nunnemaker,  142  Ind. 
560,  a  contract  was  held  to  be  in  unreasonable  restraint  of  trade,  which 
provided  that  one  party  cannot  carry  on  his  business  in  the  State  of 
Indiana  for  five  years,  except  in  Indianapolis. 

*  Nordenfelt  v.  Nordenfelt  Guns  and  Ammunition  Co.,  94  H.  L.  Ap. 
Cases,  535,  a  contract  in  restraint  of  trade  was  sustained  as  reasonable, 
which  provided  that  the  patentee  and  manufacturer  of  guns  and  ammu- 
nition, who  had  transferred  all  his  patent  rights,  would  not  for  25  years 
engage  directly  or  indirectly  in  the  same  business.    So,  also,  a  contract 
that  one  shall  not  carry  on  a  certain  business,  as  long  as  he  remains  in  the 
employ  of  another,  is  a  reasonable  and  valid  contract  in  restraint  of  trade. 
Carnig  ».  Carr,  167  Mass.  544. 

§  108 


PREVENTION  OF  COMBINATIONS  IN  RESTRAINT  OF  TRADE.  361 

limited  by  time  or  space.  Exclusive  agencies  of  certain 
articles  of  merchandise  in  a  certain  territory  are  held  to  be 
valid  contracts,  although  they  prevent  the  sale  of  the  goods 
through  any  other  party.1  And  the  by-law  of  the  Asso- 
ciated Press  Association,  that  its  members  shall  not 
receive  or  furnish  **  the  regular  news  dispatches  of  any 
other  news  association  covering  a  like  territory  and  organ- 
ized for  a  like  purpose,"  was  held  by  the  Court  of  Appeals 
to  impose  only  a  reasonable  restraint  upon  trade,  and  hence 
was  valid  and  binding  upon  the  parties  to  the  contract.2 
But  the  Supreme  Court  of  Illinois  has  reached  a  contrary 
conclusion  on  the  identical  question.3 

The  cases,  which  have  been  cited  and  explained  in  the 
foregoing  paragraphs,  involving  the  determination  of  the 
contracts  which  are  in  unlawful  restraint  of  trade,  include 
only  those  agreements,  having  that  effect,  which  are  entered 
into  only  as  a  part  of  the  consideration  of  the  sale  of  a 
business  or  trade  or  profession,  and  have  the  reasonable 
and  sound  purpose  of  transferring  the  good  will  of  the 
business  to  the  purchaser,  and  protecting  his  right  to  it, 

1  Woods  ».  Hart,  50  Neb.  497.     In  Brewing  Association  v.  Houck,  88 
Tex.  184,  the  contract  of  a  brewing  association  with  certain  persons,  to 
furnish  them  with  beer  and  to  furnish  it  to  no  other  persons  in  the  same 
city,  was  held  to  be  a  reasonable  contract  in  restraint  of  trade. 

2  Matthew  v.  Associated  Press,  136  N.  Y.  333.    The  court  said:  "  The 
latest  decisions  of  courts  in  this  country  and  in  Englaud  show  a  strong 
tendency  to  very  greatly  circumscribe  and  narrow  the  doctrine  of  avoid- 
ing contracts  in  restraint  of  trade.    The  courts  do  not  go  to  the  length 
of  saying  that  contracts  which  they  now  would  .say  are  in  restraint  of 
trade  are,  nevertheless,  valid  contracts,  and  to  be  enforced;  they  do, 
however,  now  hold  many  contracts  not  open  to  the  objection  that  they 
are  in  restraint  of  trade,  which  a  few  years  back  would  have  been 
avoided  on  that  sole  ground,  both  here  and  in  England.    *    *    *     So 
that,  when  we  agree  that  a  by-law  which  is  in  restraint  of  trade  is  void, 
we  are  still  brought  back  to  the  question,  What  is  a  restraint  of  trade  in 
the  modern  definition  of  that  term? 

"  The  authority  to  make  by-laws  must  also  be  limited  by  the  scope  and 
purpose  of  the  association.  I  think  this  by-law  is  thus  limited,  and  that 
is  not  in  restraint  of  trade,  as  the  courts  now  interpret  that  phrase." 

*  Inter-Ocean  Pub.  Co.  v.  Associated  Press  (111.  1900),  56  N.  E.  822. 

§  108 


362  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

by  obligating  the  vendor  to  refrain  from  setting  up  a 
rival  business  in  the  same  place  or  locality  or  for  a  given 
time.  There  is  no  motive  in  such  contracts  of  enhancing 
prices  by  the  creation  of  combinations  of  capital  or  skill. 
The  cases  are  numerous  where  that  is  the  motive  and 
apply  to  almost  all  kinds  of  combinations,  the  object  of 
which  is  the  extortion  of  the  public.  As  expressed  by  one 
judge,  "  a  combination  is  criminal,  whenever  the  act  to  be 
done  has  a  necessary  tendency  to  prejudice  the  public ;  or 
to  oppress  individuals,  by  unjustly  subjecting  them  to  the 
power  of  the  confederates,  and  giving  effect  to  the  pur- 
pose of  the  latter,  whether  of  extortion  or  of  mischief."1 
Even  where  this  effect  is  more  or  less  remote,  the  combina- 
tion will  be  void.  Thus  the  English  court  has  refused  to 
enforce  an  agreement,  entered  into  by  several  employers 
in  the  same  line  of  business,  to  suspend  or  carry  on  the 
business,  in  obedience  to  the  direction  of  the  majority.2 
So  also,  are  all  combinations  among  employees  void,  whose 
object  is  the  restraint  or  control  of  a  particular  trade. 
The  obligations  of  the  individual  member  to  obey  the  orders 
of  the  league  or  combination,  to  refuse  to  offer  his  services 

1  Com.  v.  Carlisle, Brightley,  40;  Hooker  v.  Vandewater,  4  Denio,  349; 
Stanton  v.  Allen,  5  Denio,  434;  Marsh  v.  Russell,  66  N.  Y.  288;  Arnot  v. 
Pittston,  etc.,  Coal  Co.,  68  N.  Y.  558;  Wiggins  Ferry  Co.  v.  Ohio,  etc., 
Ry.,  72  111.  360;  Craft  v.  McConoughy,  79  111.  346;  West.  Un.  Tel.  Co. 
v.  Chicago  &  P.  R.  R.  Co.,  86  111.  246;  Central  Ohio  Salt  Co.v.  Guthrie, 
35  Ohio  St.  666 ;  Fairbank  v.  Leary,  40  Wis.  637.     See  also,  post,  §  109, 
and  for  the  more  modern  development  of  the  laws  against  contracts  and 
combinations  in  restraint  of  trade,  §§  110  et  seq.    Of  the  same  character 
and  equally  prohibited  by  law,  as  being  in  unlawful  restraint  of  trade,  is 
an  agreement  among  certain  manufacturers  that  one  of  the  parties  to  the 
contract  will  keep  his  plant  in  idleness  for  a  given  Dumber  of  years,  in 
consideration  of  his  receipt  from  the  other  parties  to  the  agreement  of 
a  certain  percentage  on  the  sales  of  the  latter.     Oliver  v.  Gilmore,  52 
Fed.  562;  Am.  Strawboard  Co.  v.  Peoria  Strawboard  Co.,  65  111.  App. 
502.     In  the  latter  case,  the  contract  took  the  form  of    a  lease  of  the 
plant  of  one  by  the  other  party  to  the  agreement,  and  the  consideration 
was  paid  as  rent  for  the  lease  of  the  property  of  the  former. 

2  Hilton  v.  Eckersley,  6  El.  &  Bl,  47,  66. 

§   108 


A    COMBINATION    TO    *' CORNER"    THE   MARKET  363 

to  one,  against  whom  the  combination  is  directed,  cannot 
be  enforced  in  the  courts.1 

Labor  organizations  are  very  common  in  this  country,  and 
a  consideration  of  their  rights  and  powers  inside  of  the  law 
is  therefore  necessary.  It  can  hardly  be  denied  that  so  far 
as  these  organizations  have  charitable  objects  in  view,  the 
Care  of  their  sick  and  indigent  members,  the  dissemination 
of  useful  literature  among  them  and  their  enlightenment  on 
matters  connected  with  their  trade,  they  are  lawful.  For 
such  purposes,  the  formation  of  associations  can  never  be 
prohibited  in  any  free  State.  Their  prohibition  would  be  a 
violation  of  constitutional  liberty.  But  so  far  as  these 
combinations  have  for  their  object  the  control  of  trade, 
and  of  the  price  of  labor,  they  constitute  combinations  in 
restraint  of  trade,  and  all  contracts  founded  upon  them  are 
void.  A  successful  combination  of  labor  will  raise  the 
price  of  labor  and  hence  the  cost  of  the  commodity  above 
its  normal  value  in  the  same  manner  as  the  combination  of 
capitalists  will  increase  the  cost  of  the  commodity  by  in- 
creasing the  return  to  capital.  Free  trade  is  only  possible 
by  a  prohibition  of  both  classes  of  combinations  which,  if 
successful,  are  equally  dangerous  to  the  public  safety  and 
comfort.2 

§  109.  A  combination  to  "  corner"  the  market.  —  One 

of  the  commonest  cases  of  .combinations  in  restraint  of 
trade,  is  where  two  or  more  dealers  in  a  staple  commodity 
undertake  to  "corner  the  market."  Dos  Passos  defines 
"a  corner"  in  the  following  language:  "  A  scheme  or 
combination  of  one  or  more  *  bulls  '  who  are  *  long  '  of  cer- 
tain stocks  or  securities,  to  compel  the  *  bears,'  or  persons 
*  short '  of  the  stock  to  pay  a  certain  price  for  the  same. 
Or  it  may  be  a  combination  to  force  a  fictitious  and  un- 

1  Hornby  ».  Close,  L.  R.  2  Q.  B.  183. 

2  The  character,  scope  and  constitutional  powers  of  labor  organiza- 
tions are  more  fully  treated  in  §§  114,  115. 

§  109 


364  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

natural  rise  in  the  market,  for  the  purpose  of  obtaining  the 
advantage  of  dealers,  purchasers,  and  all  persons  whose 
necessities  or  contracts  compel  them  to  use  or  obtain  the 
thing  *  cornered.' "  l  In  New  York,  Illinois,  Georgia,  and 
Nebraska,  there  are  statutes  prohibiting  "  cornering,"  and 
providing  remedies  for  the  breach  of  the  statute,  but  it  is 
safe  to  assert  that  the  act  is  unlawful  at  common  law,  and 
independent  of  statute.  A  combination  to  raise  funds,  or 
create  fictitious  prices  by  the  spread  of  false  rumors,  is 
clearly  criminal  conspiracy,  for  it  injures  every  one  who 
would  have  to  make  purchases  of  the  commodity  and  were 
compelled  to  pay  a  higher  price  in  consequence  of  the  false 
rumors.2  So,  also,  will  a  combination  be  void,  which  is 
formed  for  the  purpose  of  enhancing  the  price  of  a  com- 
modity by  the  making  of  fictitious  sales.  There  is  as  much 
fraud  in  these  cases  as  where  the  combination  attained  their 
ends  by  setting  false  rumors  in  motion.  In  both  cases 
there  is  a  fraud  against  the  public.3  These  cases  are  plain, 
because  in  both  classes  of  cases  there  is  a  distinct  act  of 
deception  or  fraud.  But  the  illegality  of  combinations  is 
pushed  to  the  extreme  limit,  when  it  is  held  that  a  combi- 
nation to  enhance  the  price  of  a  commodity  is  always 
unlawful,  even  where  there  is  no  deception  or  fraud,  and 
when  the  combination  do  nothing  more  than  hold  the  goods 
which  they  control  for  higher  prices.  But  that  is  the  com- 
mon-law rule.  Such  combinations  are  quite  common  in  later 
days,  and  public  opinion  is  very  tolerant  of  them,  rarely, 
if  ever,  condemning  the  practice  as  immoral ;  but  there  can 
be  no  question  concerning  their  illegality.  In  Raymond  v. 

1  Dos  Fassos  on  Stock  Brokers,  p.  454. 

2  Rex  v,  De  Berenger,  3  M.  &  S.  67.     See,  also,  Hitchcock  v.  Coker,  6 
Ad.  &  El.  438;  Hinde  v.  Gray,  1  M.  &  G.  195;  Home  v.  Ashford,  3  Bing. 
322;  Com.  v.  Hunt,  4  Met.  111. 

3  Marsh  v.  Russell,  2  Laos.  75;  Stanton  v.  Allen,  5  Demo,  434;  2  Kent 
Com.  699;  Bissbane  v.  Adams,  3  Comst.  129;  Hooker  v.  Vandewater,  4 
Denio,  349.     See  Craft  v.  McConoughy,  79  111.  346. 

§  109 


A    COMBINATION    TO    "CORNER"    THE    MARKET.  365 

Leavitt,1  plaintiff  loaned  defendant  $10,000  for  purpose  of 
controlling  the  wheat  market  at  Detroit  for  parties  called  the 
May  deal.  The  scheme  was  "  to  force  a  fictitious  rise  in 
values."  The  court  held  that  the  money  advanced  for  the 
purpose  of  making  a  "corner"  in  wheat,  could  not  be 
recovered  by  any  legal  measures  and  this,  too,  independ- 
ently of  statute.  "  There  is  no  doubt  that  modern  ideas 
of  trade  have  practically  abrogated  some  common-law 
doctrines  which  are  supposed  to  unduly  hamper  com- 
merce." *  *  *  "  But  we  do  not  feel  called  upon  to 
regard  so  much  of  the  common  law  to  be  obsolete  as 
treats  these  combinations  as  unlawful,  whether  they  should 
now  be  held  punishable  as  crimes  or  not.  The  statute 
of  New  York,  which  is  universally  conceded  to  be  a  lim- 
itation of  the  common-law  offenses,  is  referred  to  in 
Arnot  v.  Coal  Co.,2  rendering  such  conspiracies  unlaw- 
ful, and  this  had  been  previously  held  in  People  v.  Fisher,3 
where  the  subject  is  discussed  at  length.  There  may  be 
some  difficulty  in  determining  such  conduct  to  be  in 
violation  of  public  policy,  where  it  has  not  before  been 
covered  by  statutes  as  precedents.  But  in  the  case  before  us 
the  conduct  of  the  parties  comes  within  the  undisputed  cen- 
sure of  the  laws  of  the  land,  and  we  cannot  sustain  the 
transaction,  without  doing  so  on  the  ground  that  such  deal- 
ings are  so  manifestly  sanctioned  by  usage  and  public  ap- 
proval, that  it  would  be  absurd  to  suppose  the  legislature,  if 
attention  were  called  to  them,  would  not  legalize  them.  We 
do  not  think  public  opinion  has  become  so  thoroughly  de- 
moralized ;  and  until  the  law  is  changed,  we  shall  decline 
enforcing  such  contracts.  If  parties  see  fit  to  invest  money 
in  such  ventures,  they  must  get  it  back  by  other  than 
legal  measures."  * 

1  46  Mich.  447. 

2  60  N.  Y.  548. 

3  14  Wend.  9. 

*  See  Sampson  v.  Shaw,  101  Mass.  145;  Crawford  v.  Wick,  18  Ohio, 

§  109 


366     REGULATION  OP  TRADES  AND  OCCUPATIONS. 

Of  the  same  character  would  be  an  agreement  between 
all  the  transportation  companies  of  a  particular  territory, 
which  was  made  for  the  purpose  of  preventing  competition, 
and  controlling  the  rates  of  charges  for  transportation. 
Such  agreements  are  void.1  The  only  ground  upon  which 
the  prohibition  of  combinations  in  such  cases  may  be  justi- 
fied is  that  such  combinations  tend  to  give  to  the  mem- 
bers of  them  an  undue  and  dangerous  power  over  the  needs 
and  necessities  of  the  people ;  and  for  that  reason  it  is  a 
legitimate  exercise  of  police  power  to  prohibit  such  combi- 
nations. Such  a  law  does  not  interfere  with  the  equal  free- 
dom of  all  to  do  what  they  will  with  their  own.  Every 
one  is  left  free  to  do  or  act  as  he  pleases,  but  he  is  not 
allowed  to  deny  to  others  an  equal  freedom,  not  even  with 
their  consent.  Public  policy,  the  public  safety,  requires 
the  prohibition. 

Since  the  common  law  made  it  an  indictable  offense  for 
one  man  to  **  corner  "  the  market,  there  can  be  no  question 
that  the  combination  of  two  or  more  to  buy  up  any  article 
of  merchandise,  and  force  the  payment  of  exorbitant 
prices,  is  a  criminal  conspiracy,  and  may  be  punishable 
without  further  legislation,  if  public  opinion  did  not  look 
so  leniently  upon  such  transactions.2 

190;  Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  173;  Central  Ohio 
Salt  Co.  v.  Guthrie,  35  Ohio,  666.  "  Whenever  a  particular  staple  is 
essential  to  the  health  and  comfort  of  a  community,  a  combination  to 
absorb  it,  for  the  purpose  of  extortion,  is  invalid."  1  Hawk.  P.  C.,  ch. 
80,  §  1;  1  Bl.  Com.  150;  Bex  v.  Waddington,  1  East,  43;  Indian  Bagging 
Co.  v.  Cock  &  Co.,  14  La  Ann.  164;  1  Smith's  Lead.  Cas.  307, 381 ;  Lang  v. 
Weeks,  2  Ohio  (N.  s.),  519;  Thomas  v.  Tiles,  3  Ohio,  74;  Barry  v. 
Croskey,  2  Johns.  &  H.  1. 

1  Maguire  v.  Smock,  42  Ind.  1;  Stannton  v.  Allen,  5  Denio,  434; 
Hooker  v.  Vandewater,  4  Denio,  349 ;  Oregen  St.  Nav.  Co.  v.  Winsor,  20 
Wall.  64. 

8  "  By  the  law  of  New  York,  no  conspiracies  are  punishable  criminally, 
except  those  there  stated,  and  among  others  the  conspiracy  of  two  or 
more  persons  '  to  commit  any  act  injurious  to  i  he  public  health,  to  public 
morals,  or  trade  or  commerce,  or  for  the  perversion  or  obstruction  of  jus- 

§  109 


CONTRACTS   AGAINST  LIABILITY  FOR  NEGLIGENCE.      367 

§  10921.  Contracts  against  liability  for  negligence  pro- 
hibited.—  The  liability  for  negligence  is  imposed  by  the 
law,  and  does  not  arise  out  of  the  contract  of  the  parties. 
The  duty,  in  the  performance  of  which  the  negligence  oc- 
curred, may  arise  out  of,  and  rest  upon,  contract;  but  the 
exercise  of  care  in  the  performance  of  a  duty,  whether  the 
duty  is  legal  or  contractual,  is  an  obligation  often  of  gen- 
eral application.  Ordinarily,  the  performance  of  a  legal 
duty,  or  the  liability  for  an  improper  performance,  may  be 
waived  by  agreement  of  the  persons  who  may  be  affected 
by  it.  The  law  does  not  ordinarily  compel  persons  to  avail 
themselves  of  the  protection  it  affords  them.  But  where 
the  duty  is  of  so  general  a  nature,  as  that  the  proper  per- 
formance of  it,  even  where  the  private  individual  is  most 
affected  by  it,  becomes  a  matter  of  public  policy,  the  right 
may  very  properly  be  denied  to  the  private  individual  to 
relieve  another  by  contract  from  the  liability  for  improper 
performance.  A  private  person,  probably,  cannot  be 
forced  to  sue  on  the  tort,  but  the  law  may  declare  void 
any  contract,  by  which  he  relieves  the  person,  on  whom 
the  duty  rests,  from  liability.  This  is  the  rule  at  com- 
mon law  in  respect  to  liability  for  negligence.  No  man 
can  by  contract  relieve  himself  from  liability  for  negli- 
gence in  the  performance  of  any  duty  to  the  public 
generally,  or  to  a  particular  individual,  whether  the  duty 

tice,  or  due  administration  of  the  laws  '  shall  constitute  a  misdemeanor. 
Under  this  broad  and  comprehensive  language,  which  is  practically  the  rule 
in  all  the  States,  either  by  adoption  of  the  common  law  or  express  statute, 
it  will  not  be  difficult  to  punish  infamous  conspiracies  or  combinations, 
whether  their  object  be  to  affect  the  necessaries  of  life,  or  securities, 
or  other  property  in  which  the  public  have  an  interest."  Dos  Passos  on 
Stock  Brokers,  462,  463;  Peck  v.  Gurney,  L.  R.  6  H.  L.  C.  377;  Pasley 
v.  Freeman,  3  J.  R.  61;  Bevan  v.  Adams,  19  W.  R.  76;  Beatty  v.  Evans, 
L.  R.  7  H.  L.  C.  102;  Pontifex  ».  Bignold's,  3  Scott,  N.  R.  390;  Moore 
w.  Burke,  4  F.  &  F.  258;  Cross  v.  Lockett,  6  App.  Pr.  247;  Wakeman  v. 
Dalley,  44  Barb.  498;  Cazeaux  v.  Mali,  26  Barb.  678;  Mouse  v.  Switz,  19 
How.  275;  In  re  Chandler,  13  Am.  Law  Reg.  (N.  s.)  260;  s.  c.  Bias,  C.  C. 
63;  sub.  nom.  Ex  parte  Young. 

§  109a 


368  REGULATION    OF   TRADES    AND   OCCUPATIONS. 

arises  out  of  a  contract  or  is  imposed  by  the  law;  but 
particularly  so  where  the  law  imposes  the  duty.  This 
restriction  upon  the  contracts  of  individuals  has  particular 
application  to  contracts  with  common  carriers  and  telegraph 
companies.  In  respect  to  the  common  carrier,  the  common 
law  imposed  the  obligation  to  guarantee  the  safe  delivery  of 
the  goods  intrusted  to  his  care  for  transportation,  and  he  is 
liable  for  the  failure  to  deliver  them  at  the  place  of  desti- 
nation in  every  case,  except  where  they  are  proven  to  have 
been  destroyed  by  the  intervention  of  some  unavoidable 
natural  agency,  or  by  the  act  of  the  public  enemy.  The 
exercise  of  the  highest  degree  of  care  constitutes  no  defense. 
Public  policy  requires  the  imposition  of  this  extraordinary 
obligation.1  But  the  imposition  of  this  extraordinary  obli- 

1  Coggs  v.  Bernard,  2  Ld.  Raym.  909;  Railroad  ».  Reeves,  10  Wall. 
176;  Bulkley  v.  Naumkeag,  etc.,  Co.,  24  How.  386;  Fillebrown  v.  Grand 
Trunk,  etc.,  Co.,  55  Me.  462;  Caldwell  v.  N.  J.  Steamboat  Co.,  47  N.  Y. 
282;  Orange  Co.  Bk.  v.  Brown,  9  Wend.  85;  Hayes  o.  Kennedy,  41  Pa. 
St.  378;  Morrison  v.  Davis,  20  Pa.  St.  171 ;  Boyle  v.  McLaughlin,  4  H.  & 
J.  291 ;  New  Brunswick,  etc.,  Co.  v.  Tiers,  24  N.  J.  697;  Friend  ».  Woods, 
6  Gratt.  139 ;  Swindler  v.  Billiard,  2  Rich.  286 ;  Turney  v.  Wilson,  7  Yerg. 
640;  Powell  v.  Mills,  30  Miss.  231;  Chicago,  etc.,  R.  R.  Co.  v.  Sawyer, 
69  111.  285;  Merchants'  Dispatch  Co.  v.  Smith,  76  111.  542;  McMillan  v. 
Michigan,  etc.,  R.  R.  Co.,  16  Mich.  79;  Bohannan  v.  Hammond,  42  Cal. 
227.  The  exceptions  to  this  general  liability  as  an  Insurer  are  usually 
stated  to  be  "  the  act  of  God,  or  of  the  public  enemy."  The  "act  of 
God  "  means  any  natural  cause,  which  could  not  be  avoided  by  human 
foresight.  "  What  is  precisely  meant  by  the  expression  '  act  of  God '  as 
used  in  the  case  of  common  carriers,  has  undergone  discussion,  but  it  is 
agreed  that  the  notion  of  exception  is  those  losses  and  injuries  occasioned 
exclusively  by  natural  causes,  such  as  could  not  be  prevented  by  human 
care,  skill,  and  foresight.  All  the  cases  agree  in  requiring  the  entire  ex- 
clusion of  human  agency  from  the  cause  of  the  injury  or  loss.  If  the 
loss  or  injury  happen  in  any  way  through  the  agency  of  man,  it  cannot  be 
considered  the  act  of  God ;  nor  even  if  the  act  or  negligence  of  man  con- 
tributes to  bring  or  leave  the  goods  of  the  carrier  under  the  operation  of 
natural  causes  that  work  to  their  injury,  is  he  excused.  In  short,  to 
excuse  the  carrier,  the  act  of  God,  or  vis  divina,  must  be  the  sole  and 
immediate  cause  of  the  injury.  If  there  be  any  co-operation  of  man,  or 
any  admixture  of  human  means,  the  injury  is  not,  in  a  legal  sense,  the  act 
of  God."  Wright,  J.,  in  Michaels  v.  N.  J.  Cent.  R.  R.  Co.,  30  N.  Y.  571. 
§  109a 


CONTRACTS    AGAINST    LIABILITY   FOR   NEGLIGENCE.      369 

gation  is  not  deemed  to  be  so  far  required  by  public  policy, 
as  that  parties  may  not  be  permitted  by  contract  to  release 
the  carrier  from  it.  Common  carriers  may  limit  their  com- 
mon-law liability  to  acts  of  negligence  by  contract  with  the 
consignor.  But  the  contract  must  be  freely  and  voluntarily 
made.  The  carrier  cannot  refuse  to  take  goods  for  carriage 
under  the  common-law  liability,  if  the  consignor  should 
refuse  his  assent  to  a  limitation.1  But  public  policy  would 
not  permit  the  enforcement  of  a  contract,  which  not  only 
released  the  carrier  of  his  common-law  liability  as  an  in- 
surer, but  likewise  from  the  consequences  of  his  negligence. 
It  is  the  almost  invariable  rule  of  law  in  the  United  States, 
that  common  carriers  are  forbidden  to  relieve  themselves 
by  contract  from  liability  for  injuries  caused  by  the  negli- 
gence of  the  carrier  or  his  servants.  This  is  the  rule  of 
law,  whether  the  carrier  be  a  natural  person  or  a  corpora- 
tion.2 In  New  York  and  New  Jersey,  it  has  been  held  not 
to  be  against  public  policy  for  common  carriers  to  make 

1  New  Jersey  Steam  Nav.  Co.  v.  Merchant's  Bank,  6  How.  344;  Bail- 
road  Co.   v.   Manufacturing  Co.,   16  Wall.  318;  Fillebrowne  v.  Grand 
Trunk  R.  Co.,  65  Me.  462;  Brown  v.  Eastern  R.  Co.,  11  Cush.  97;  Buck- 
land  v.   Adams  Express  Co.,  97  Mass.   124;  Hollister  v.   Nowlen,  19 
Wend.  234;  Bennett  v.  Dutton,  10  N.  H.  481 ;  McCoy  v.  Erie,  etc.,  R.  R. 
Co.,  42  Md.  498;  Smith  v.  N.  C.  R.  R.,  64  N.  C.  235;  Southern  Express 
Co.  v.  Caperton,  44  Ala.  101;  Jones  v.  Voorhees,  10  Ohio,  145;  McMil- 
lan v.  Michigan,  etc.,  R.  R.,  16  Mich.  79. 

2  New  Jersey,  etc.,  Co.  v.  Merchants'  Bk.,  6  How.  344;  York  Co.  v. 
Central  R.  R.  Co.,  3  Wall.  107;  Sager  v.  Portsmouth,  etc.,  R.  R.  Co.,  31 
Me.  228;  School  Dist.  v.  Boston,  etc.,  R.  R.  Co.,  102  Mass.  652;  Cam- 
den,  etc.,  R.  R.  v.  Baldauf,  17  Pa.  St.  67;  Bickham  v.  Smith,  62  Pa.  St. 
45;  Delaware,  etc.,  R.  R.  v.  Starrs,  69  Pa.  St.  36;  Welch  o.  Boston,  etc., 
R.   R.,  41  Conn.   333;  Virginia,  etc.,  R.  R.  v.   Sayers,  26   Gratt.   328; 
Smiths.  N.  C.  R.  R  ,  64  N.  C.  235;  Swindler  v.   Billiard,  2  Rich.  286; 
Berry  v.  Cooper,  28  Ga.  543;  Indianapolis,  etc.,   R.  R.  v.   Allen,  31  Ind. 
394;     Southern    Express  v.   Moon,    39    Miss.   822;    Gaines    v.  Union 
Transp.  Co.,  28  Ohio  St.  418;  Great  West.  R.  R.  v.  Hawkins,  17  Mich. 
57;  s.  c.  18  Mich.  427;  Adams  Exp.  Co.  v.  Stettaners,  61  111.  174;  Stur- 
geon v.  St.  Louis,  etc.,  R.  R.,  65  Mo.  669;  South,  etc.,  R.  R.  v.  Heulein, 
52  Ala.  606;  Mo.  Val.  R.   R.   ».  Caldwell,  8   Kan.   244;  N.  O.  Ins.  Co.  v. 
N.  O.,  etc.,  R.  R.,  20  La.  Ann.  302;  Hooper  v.  Wells,  27  Cal.  11. 

24  §    109a 


370  REGULATION  OF  TRADES   AND   OCCUPATIONS. 

contracts,  whereby  to  release  themselves  from  liability 
for  the  negligence  of  their  servants,  although  it  is  for- 
bidden them  to  divest  themselves  of  responsibility  for 
their  own  negligence;  and  in  case  of  railroad  corpora- 
tions this  principle  has  been  carried  so  far  as  to  enable  a 
release  from  liability  for  the  negligence  of  every  agent  of 
the  corporation,  except  the  board  of  directors.1  The  pro- 
hibition of  contracts  in  release  of  liability  for  negligence  is 
the  same,  whether  it  refers  to  the  carriage  of  goods  or  of 
passengers.  In  the  latter  cases,  such  contracts  are  against 
public  policy,  and  therefore,  void,  even  where  the  pas- 
senger is  traveling  on  a  free  pass,  whether  the  pass  is 
given  in  conjunction  with  the  transportation  of  freight  for 
hire,  as  in  the  case  of  "  drover's  passes,"  2  but  also  where 
it  is  given  as  a  matter  of  courtesy.3  The  cases  generally 
maintain  that  the  common  carrier  is  held  to  the  same  degree 
of  care,  whether  the  carriage  is  gratuitous  or  for  a  consid- 
eration, but  it  would  seem  but  natural  to  require  of  the 
common  carrier,  in  cases  of  free  passes,  only  that  degree 
of  care,  which  is  required  of  all  bailees,  where  the  bail- 
ment is  exclusively  for  the  benefit  of  the  bailor,  viz. :  slight 
care,  and  it  has  been  so  held  in  Illinois.4 

The  same  restriction  against  contractual  releases  from 
liability  for  negligence  has  been  applied  to  telegraph  com- 

1  Wells  v.  N.  Y.  Cent.  R.  B.,  24  N.  Y.  181 ;  Perkins  v.  N.  Y.  Cent.  R.  R., 
24  N.  Y.  197;  Smith  v.  N.  Y.  Cent.  R.  R.,  24  N.  Y.  222;  Bissell  v.  N.  Y. 
Cent.  R.  R.,  25  N.  Y.  442;  Poacher  v.  N.  Y.  Cent.  R.  R.,  49  N.  Y.  263; 
Kinney  v.  Cent.  R  R.,  32  N.  J.  407;  *.  c.  34  N.  J.  513. 

2  Railroad  Co.  v.  Lockwood,  17  Wall.  357;  Cleveland,  etc.,  R.  R.  o. 
Curran,  19  Ohio  St.  1;  Ohio,  etc.,  R.  R.  v.  Selby,  47  Ind.  471. 

3  Philadelphia,  etc.,  R.  R.  v.   Derby,  14  How.  468;  Pa.  R.  R.  Co.  v. 
Butler,  57  Pa.  St.  335;  Ind.  Cent.  R.  R.  v.  Mundy,  21  Ind.  48;  Jacobus  v. 
St.  Paul,  etc.,  R.  R.,  20  Minn.  125. 

4  "  While  we  hold  this  argument  did  not  exempt  the  railroad  company 
from  the  gross  negligence  of  its  employees,  we  are  free  to  say  that  it  does 
exempt  it  from  all  other  species  or  degrees  of  negligence  not  denomi- 
nated gross,  or  which  might  have  the  character  of  recklessness."    111. 
Cent.  R.  R.  v.  Read,  37  111.  484. 

§    109a 


COMMON   LAW  PROHIBITION   OF   COMBINATIONS.         371 

panics,  but  with  a  notable  exception.  The  general  rule, 
that  one  can  not  by  contract  relieve  himself  from  responsi- 
bility for  negligence,  applies.  But  in  consequence  of  the 
great  liability  to  the  commission  of  errors  in  the  transmis- 
sion of  messages ;  arising  from  the  limited  control  over  the 
electrical  current,  and  the  great  exposure  to  accidents  to 
the  wires,  and  to  the  electrical  apparatus  at  both  ends;  it 
has  very  generally  been  held  to  be  a  reasonable  and  per- 
missible stipulation,  that  the  telegraph  company  will  not 
be  responsible  for  errors  in  transmission  of  messages, 
whether  they  arise  from  the  intervention  of  natural  causes 
or  the  negligence  of  the  operators,  unless  the  message  is 
repeated.  Such  a  contract  would  be  equivalent  to  an 
agreement  to  send  the  message  fora  less  sum,  upon  con- 
dition of  being  relieved  from  liability  for  errors  or  delays.1 

§  110.  Common  law  prohibition  of  combinations  in 
restraint  of  trade  restated.  —  As  it  has  been  fully  ex- 
plained in  the  two  preceding  sections,  leaving  out  of  consid- 
eration the  ancient  and  obsolete  English  statutes  against 
forestalling,  regrating,  etc.,  the  common  law,  — as  it  comes 
to  us,  and  as  it  has  been  enunciated  by  the  courts  in  earlier 
cases,  which  have  been  cited  in  the  preceding  two  sec- 
tions —  in  declaring  against  contracts  whose  enforcement 

1  McAndrew  v.  Electrical  Tel.  Co.,  17  C.  B.  3;  Grinnell  v.  West. 
Union  Tel.  Co.,  113  Mass.  299  (18  Am.  Rep.  485)  ;  True  v.  Int.  Tel.  Co., 
60  Me.  9;  Young  v.  West.  Union  Tel.  Co.,  65  N.  Y.  163;  Passmore  v.  W. 
U.  Tel.  Co.,  78  Pa.  St.  238;  Berney  v.  N.  Y.,  etc.,  Tel.  Co.,  18  Md.  341; 
W.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525.  In  Illinois,  it  is  not  permitted 
to  telegraph  companies  to  stipulate  that  they  will  not  be  responsible  for 
errors  arising  solely  from  the  negligence  of  the  operators.  They  can 
stipulate  against  liability  for  errors,  only  where  they  occur  through 
some  natural  cause  beyond  the  company's  control.  Tyler  v.  West. 
Union  Tel.  Co.,  60  111.  421  (14  Am.  Rep.  38);  West.  Union  Tel.  Co.  v. 
Tyler,  74  111.  1G3.  See  Wann  v.  West.  Union  Tel.  Co.,  37  Mo.  472; 
Sweatland  v.  111.,  etc.,  Tel,  Co.,  27  Iowa,  432;  Candee  v.  West.  Union 
Tel.  Co.,  34  Wis.  471;  West.  Union  Tel.  Co.  v.  Graham,  1  Col.  230.  In 
the  last  case  it  was  held  that  the  condition  against  liability,  where  the 
message  is  not  repeated,  is  no  defense  in  an  action  for  failure  to  deliver. 

§  no 


372  REGULATION   OF   TRADES    AND    OCCUPATIONS, 

r 

tended  to  restrain  trade  and  commerce,  limited  its  prohibi- 
tion in  two  ways :  First,  it  did  not  punish  the  parties  to 
such  contracts  for  making  them,  and  confined  its  prohibi- 
tion to  a  refusal  to  enforce  the  contract  which  fell  under 
its  ban,  because  such  contract  was  against  public  policy,  in 
that  it  tended  to  restrain  trade  and  competition  to  the 
prejudice  of  the  public  welfare.  Secondly,  it  did  not 
declare  all  contracts  in  restraint  of  trade  to  be  against 
public  policy ;  only  those  which,  according  to  judicial 
opinion,  were  in  unreasonable  restraint  of  trade,  not  only 
permitting  but  enforcing  some  contracts,  because  they  were 
reasonable,  although  their  enforcement  did  operate  to 
restrain  trade  and  limit  competition.1 

In  the  further  prosecution  of  this  subject,  it  will  be  seen 
that  in  both  particulars  the  common  law  has  been  changed 
by  modern  legislation  in  the  United  States.  But  before 
proceeding  to  the  exposition  of  the  recent  legislation  in  the 
United  States,  I  desire  to  make  still  more  positive  the 
accuracy  of  my  two  propositions,  in  regard  to  the  scope  of 
the  common  law  prohibition  of  contracts  in  restraint  of 
trade,  by  a  very  full  reference  to  two  important  recent 
cases  in  the  English  and  New  York  courts. 

The  first  case  arose  in  the  English  courts.2  A  large  num- 
ber of.  owners  of  ships,  which  were  employed  in  carrying 
freight  from  the  same  English  ports,  entered  into  an  asso- 
ciation which  brought  all  the  freight  business  of  the  mem- 
bers under  the  regulation  of  the  association  ;  the  by-laws 
of  the  association  to  control  the  number  of  ships  of  each 
member,  the  division  of  the  cargoes  and  freights,  and  the 
general  management  of  the  carrying  business  of  that  port. 
In  order  to  make  their  control  of  the  business  complete, 
the  association  offered  a  rebate  of  five  per  cent  on  all 

1  See  §  108  for  cases  and  fuller  exposition  of  the  common  law  in  this 
matter. 

2  Mogul  Steamship  Co.  v.  McGregor,  21  Q.  B.  D.  544 ;  s .  c.  23  Q.  B. 
D.  598. 

§  no 


COMMON    LAW   PROHIBITION   OF   COMBINATIONS.          373 

freights  to  shippers  who  shipped  their  goods  exclusively  on 
the  ships  controlled  by  the  association;  and  prohibited 
their  freight  agents,  on  penalty  of  removal,  from  being 
directly  or  indirectly  interested  in  securing  freight  for  com- 
peting ship-owners.  Any  member  of  the  association  was 
privileged  to  withdraw  from  the  combination  at  any  time 
upon  giving  the  stipulated  notice.  The  association  then 
reduced  the  rates  of  freight  to  such  a  degree  that  an  inde- 
pendent ship-owner  could  not,  except  at  a  ruinous  loss, 
compete  with  the  associated  ship-owners.  A  virtual 
monopoly,  as  described  by  the  Supreme  Court  of  the 
United  States  in  Munn  v.  Illinois,  was  thereby  created. 
The  plaintiffs,  who  were  among  the  ship-owners,  who  were 
not  members  of  the  association,  undertook  to  compete  for 
the  carrying  trade  of  that  port,  by  sending  ships  there  in 
search  of  cargoes,  but  failed  because  of  the  overwhelming 
power  of  the  association.  The  only  difference,  but  cer- 
tainly an  important  one,  between  the  virtual  monopoly  of 
the  Chicago  Elevator  Companies  which  was  the  subject  of 
regulation  in  Munn  v.  Illinois,  and  the  virtual  monopoly  of 
these  associated  ship-owners,  was  that  the  combination  of 
elevator  owners  was  charged  with  the  design  of  extorting 
exorbitant  charges  for  the  storage  of  grain  from  the 
shippers;  whereas,  the  English  combination  in  this  case 
was  charged  with  the  conspiracy,  by  lowering  rates  of 
freight  to  such  a  degree  that  an  independent  ship-owner 
could  not  successfully  compete  with  the  combination,  to 
stifle  all  competition,  and  thus  secure  a  complete  monopoly 
of ( the  carrying  business  from  that  port. 

The  English  courts,  from  the  initiatory  trial  up  to  the 
appeal  to  the  House  of  Lords,  denied  that  the  associated 
ship-owners  had  been  guilty  of  any  conspiracy  at  the  com- 
mon law,  for  which  they  were  amenable  to  the  plaintiffs, 
either  criminally  or  civilly,  although  the  agreements  of  the 
associated  ship-owners  were  clearly  contracts  in  restraint  of 
trade,  which  the  courts  would  have  refused  to  enforce 

§  HO 


374  REGULATION   OP  TRADES   AND   OCCUPATIONS. 

between  the  members  thereof.  Full  quotations  from 
the  opinions  of  the  courts  are  given  in  the  note  below.1 
It  will  be  observed  that  the  English  court  held  that  in 
order  that  a  combination  of  capitalists  may  make  out  a 
case  of  actionable  conspiracy  at  the  common  law,  they 

1  Lord  Coleridge  said :  "But  it  is  said  that  the  motive  of  these  acts 
was  to  ruin  the  plaintiffs,  and  that  such  a  motive,  it  has  been  held,  will 
render  the  combination  itself  wrongful  and  malicious,  and  that  if  damage 
has  resulted  to  the  plaintiffs  an  action  will  lie.  I  concede  that  if  the 
premises  are  established  the  conclusion  follows.  It  is  too  late  to  dis- 
pute, if  I  desired  it,  as  I  do  not,  that  a  wrongful  and  malicious  com- 
bination to  ruin  a  man  in  his  trade  may  be  ground  for  such  an  action 
as  this.  Was  then  this  combination  such?  The  answer  in  this  question 
has  given  me  much  trouble,  and  I  confess  to  the  weakness  of  having  long 
doubted  and  hesitated  before  I  could  make  up  my  mind.  There  can  be 
no  doubt  that  the  defendants  were  determined,  If  they  could,  to  exclude 
the  plaintiffs  from  this  trade.  Strong  expressions  were  drawn  from 
some  of  them  in  cross-examination,  and  the  telegrams  and  letters 
showed  the  importance  they  attached  to  the  matter,  their  resolute  pur- 
pose to  exclude  the  plaintiffs  if  they  could,  and  to  do  so  without  any 
consideration  for  the  results  to  the  plaintiffs,  if  they  were  successfully 
excluded.  This,  I  think,  is  made  out,  and  I  think  no  more  is  made  out 
than  this.  Is  this  enough?  It  must  be  remembered  that  all  trade  is  and 
must  be  in  a  sense  selfish ;  trade  not  being  infinite,  nay,  the  trade  of  a 
particular  place  or  district  being  possibly  very  limited,  what  one  man 
gains  another  loses.  In  the  hand-to-hand  war  of  commerce,  as  in  the 
conflicts  of  public  life,  whether  at  the  bar,  in  parliament,  in  medicine, 
in  engineering  (I  give  examples  only)  men  fight  on  without  much  thought 
of  others,  except  a  desire  to  excel  or  to  defeat  them.  Very  lofty 
minds,  like  Sir  Philip  Sidney,  with  his  cup  of  water,  will  not  stoop  to 
take  an  advantage,  if  they  think  another  wants  it  more.  Our  age,  in 
spite  of  high  authority  to  the  contrary,  is  not  without  its  Sir  Philip  Sid- 
neys; but  these  are  counsels  of  perfection  which  it  would  be  silly  indeed 
to  make  the  measure  of  the  rough  business  of  the  world  as  pursued  by 
ordinary  men  of  business.  The  line  is  in  words  difficult  to  draw,  but  I 
cannot  see  that  these  defendants  have  in  fact  passed  the  line  which 
separates  the  reasonable  and  legitimate  selfishness  of  traders  from 
wrong  and  malice.  In  1884  they  admitted  the  plaintiffs  to  their  confer- 
ence; in  1885  they  excluded  them,  and  they  were  determined,  no  doubt, 
if  they  could,  to  make  the  exclusion  complete  and  effective,  not  from 
any  personal  malice  or  ill-will  to  the  plaintiffs  as  individuals,  but  because 
they  were  determined  if  they  could  to  keep  the  trade  to  themselves;  and 
if  they  permitted  persons  in  the  position  of  the  plaintiffs  to  come  in  and 
share  it,  they  thought,  and  honestly,  and,  as  it  turns  out,  correctly 
§  HO 


COMMON   LAW   PROHIBITION   OF   COMBINATIONS.          375 

must  use  unlawful  means,  such  as  fraud  or  other  dis- 
honesty, intimidation,  molestation  or  actual  malice.  It 
was  not  sufficient  that  the  inevitable  effect  of  the  combina- 
tion was  to  drive  the  plaintiffs  out  of  business,  if  only  the 
ordinary  tactics  of  commercial  warfare  were  employed. 

thought,  that  for  a  time  at  least  there  would  be  an  end  of  their 
gains." 

Judge  Bowen  —  on  appeal  in  Queen's  Bench  Division:  "The  de- 
fendants, we  are  told  by  plaintiffs'  counsel,  might  lawfully  lower  rates, 
provided  they  did  not  lower  them  beyond  a  'fair  freight,'  whatever  that 
may  mean.  But  where  is  it  established  that  there  is  any  such  restriction 
upon  commerce?  And  what  is  to  be  the  definition  of  a  '  fair  freight?  ' 
It  is  said  that  it  ought  to  be  a  normal  rate  of  freight,  such  as  is  rea- 
sonably remunerative  to  the  shipowner.  But  over  what  period  of  time 
is  the  average  of  this  reasonable  remunerativeness  to  be  calculated? 
All  commercial  men  with  capital  are  acquainted  with  the  ordinary  ex- 
pedient of  sowing  one  year  a  crop  of  apparently  unfruitful  prices,  in 
order,  by  driving  competition  away,  to  reap  a  fuller  harvest  of  profit  in 
the  future ;  and  until  the  present  argument  at  the  bar  it  may  be  doubted 
whether  ship-owners  or  merchants  were  ever  deemed  to  be  bound  by  law 
to  conform  to  some  imaginary  *  normal '  standard  of  freights  or  prices, 
or  that  law  courts  had  a  right  to  say  to  them  in  respect  of  their  com- 
petitive tariffs,  '  Thus  far  shalt  thou  go  and  no  further.'  To  attempt  to 
limit  English  competition  in  this  way  would  probably  be  as  hopeless  an 
endeavor  as  the  experiment  of  King  Canute.  But  on  ordinary  principles 
of  law  no  such  fetter  on  freedom  of  trade  can,  in  my  opinion,  be  war- 
ranted. A  man  is  bound  not  to  use  his  property  so  as  to  infringe  upon 
another's  rights.  /S'ic  utere  tuo  ut  alienum  non  laedas.  If  engaged  in 
actions  which  may  involve  danger  to  others,  he  ought,  speaking  gen- 
erally, to  take  reasonable  care  to  avoid  endangering  them.  But  there  is 
surely  no  doctrine  of  law  which  compels  him  to  use  his  property  in  a 
way  that  judges  and  juries  may  consider  reasonable.  See  Chasemore  v. 
Richards.  If  there  is  no  such  fetter  upon  the  use  of  property  known  to 
the  English  law,  why  should  there  be  any  such  a  fetter  upon  trade? 

It  is  urged,  however,  on  the  part  of  the  plaintiffs,  that  even  if  the  acts 
complained  of  would  not  be  wrongful  had  they  been  committed  by  a 
single  individual,  they  become  actionable  when  they  are  the  result  of 
concerted  action  among  several.  In  other  words,  the  plaintiffs,  it  is 
contended,  have  been  injured  by  an  illegal  conspiracy.  Of  the  general 
proposition,  that  certain  kinds  of  conduct  not  criminal  in  any  one  indi- 
vidual may  become  criminal  if  done  by  combination  among  several, 
there  can  be  no  doubt.  The  distinction  is  based  on  sound  reason,  for  a 
combination  may  make  oppressive  or  dangerous  that  which,  if  it  pro- 
ceeded only  from  a  single  person,  would  be  otherwise,  and  the  very  fact 

§  no 


376  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

In  the  case,  arising  in  the  New  Youk  courts,  the  Dia- 
mond Match  Company  had  purchased  the  factory  of  one 
Roeber  and  the  good-will  of  his  business,  with  the  agree- 
ment that  Roeber  should  not  engage,  during  his  natural 
life,  in  the  business  of  manufacturing  and  selling  matches 

of   the  combination  may  show  that  the  object  is  simply  to  do  harm, 
and  not  to  exercise  one's  own  just  rights." 

"  In  the  application  of  this  undoubted  principle  it  is  necessary  to  be 
very  careful  not  to  press  the  doctrine  of  illegal  conspiracy  beyond  that 
which  is  necessary  for  the  protection  of  individuals  or  of  the  public; 
and  it  may  be  observed  in  passing  that  as  a  rule  it  is  the  damage  wrong- 
fully done,  and  not  the  conspiracy,  that  is  the  gist  of  actions  on  the  case 
for  conspiracy.  See  Skinner  v.  Gunton;  Hutchins  v.  Hutchins.  But 
what  is  the  definition  of  an  illegal  combination?  It  is  an  agreement  by 
one  or  more  to  do  an  unlawful  act,  or  to  do  a  lawful  act  by  unlawful 
means.  O'Connell  v.  The  Queen;  Reg.  v.  Parnell;  and  the  question  to 
be  solved  is  whether  there  has  been  any  such  agreement  here.  Have  the 
defendants  combined  to  do  an  unlawful  act?  Have  they  combined  to  do 
a  lawful  act  by  unlawful  means?  A  moment's  consideration  will  be 
sufficient  to  show  that  this  new  inquiry  only  drives  us  back  to  the  circle 
of  definitions  and  legal  propositions  which  I  have  already  traversed  in 
the  previous  part  of  this  judgment.  The  unlawful  act  agreed  to,  if 
any,  between  the  defendants  must  have  been  the  intentional  doing  of 
some  act  to  the  detriment  of  the  plaintiffs'  business  without  just  cause 
or  excuse.  Whether  there  was  any  such  justification  or  excuse  for 
the  defendants  is  the  old  question  over  again,  which,  so  far  as  regards 
an  individual  trader,  has  been  already  solved.  The  only  deferentia  that 
can  exist  must  arise,  if  at  all,  out  of  the  fact  that  the  acts  done  are 
the  joint  acts  of  several  capitalists,  and  not  of  one  capitalist  only. 
The  next  point  is  whether  the  means  adopted  were  unlawful.  The 
means  adopted  were  competition  carried  to  a  bitter  end.  Whether  such 
means  are  unlawful  is  in  like  manner  nothing  but  the  old  discussion 
which  I  have  gone  through,  and  which  is  now  revived  under  a  second 
head  of  inquiry,  except  so  far  as  a  combination  of  capitalists  differ 
entiates  the  case  of  acts  jointly  done  by  them  from  similar  acts  done 
by  a  single  man  of  capital.  But  I  find  it  impossible  myself  to  acquiesce 
in  the  view  that  the  English  law  places  any  such  restriction  on  the 
combination  of  capital  as  would  be  involved  in  the  recognition  of  such 
a  distinction.  If  so,  one  rich  capitalist  may  innocently  carry  compe- 
tition to  a  length  which  would  become  unlawful  in  the  case  of  a  syndi- 
cate with  a  joint  capital  no  larger  than  his  own,  and  one  individual 
merchant  may  lawfully  do  that  which  a  firm  or  a  partnership  may  not, 
What  limits,  on  such  a  theory,  would  be  imposed  by  law  on  the  com- 
petitive action  of  a  joint-stock  company  limited,  is  a  problem  which 
§  110 


COMMON   LAW   PROHIBITION   OF   COMBINATIONS.         377 

in  any  part  of  the  United  States,  with  the  exception  of 
Montana.  In  a  suit,  brought  by  the  Diamond  Match  Com- 
pany, to  compel  Roeber  to  carry  out  his  agreement  to 
abstain  from  engaging  in  the  same  business,  anywhere 
except  in  Montana ;  the  Court  of  Appeals  held  this  agree- 

might  well  puzzle  a  casuist.  The  truth  is  that  the  combination  of  cap- 
ital for  purposes  of  trade  and  competition  is  a  very  different  thing  from 
such  a  combination  of  several  persons  against  one,  with  a  view  to  harm 
him,  as  falls  under  the  head  of  an  indictable  conspiracy.  There  is  no 
just  cause  or  excuse  in  the  latter  class  of  cases.  There  is  such  a  just 
cause  or  excuse  in  the  former.  There  are  cases  in  which  the  very  fact 
of  a  combination  is  evidence  of  a  design  to  do  that  which  is  hurtful 
without  just  cause  —  is  evidence  —  to  use  a  technical  expression  —  of 
malice.  But  it  is  perfectly  legitimate,  as  it  seems  to  me,  to  combine 
capital  for  all  the  mere  purposes  of  trade  for  which  capital  may,  apart 
from  combination,  be  legitimately  used  in  trade.  To  limit  combinations 
of  capital,  when  used  for  purposes  of  competition,  in  the  manner  pro- 
posed by  the  argument  of  the  plaintiffs,  would,  in  the  present  day,  be 
impossible  —  would  be  only  another  method  of  attempting  to  set  boun- 
daries to  the  tides.  Legal  puzzles  which  might  well  distract  a  theorist 
may  easily  be  conceived  of  imaginary  conflicts  between  the  selfishness 
of  a  group  of  individuals,  and  the  obvious  well-being  of  other  mem- 
bers of  the  community." 
******  *  *  *  *  *  *** 

"  Lastly,  we  are  asked  to  hold  the  defendants'  Conference  or  associa- 
tion illegal,  as  being  in  restraint  of  trade.  The  term  '  illegal '  here  is  a 
misleading  one.  Contracts,  as  they  are  called  in  restraint  of  trade,  are 
not  in  my  opinion  illegal  in  any  sense,  except  that  the  law  will  not  en- 
force them.  It  does  not  prohibit  the  making  of  such  contracts;  it 
merely  declines  after  they  have  been  made  to  recognize  their  validity. 
The  law  considers  the  disadvantage  so  imposed  upon  the  contract  a 
sufficient  shelter  to  the  public.  The  language  of  Crorapton,  J.,  in  Hilton 
v,  Eckersley,  is,  I  think,  not  to  be  supported.  No  action  at  common 
law  will  lie  or  ever  has  lain  against  any  individual  or  individuals  for 
entering  into  a  contract  merely  because  it  is  in  restraint  of  trade.  Lord 
Eldon's  equity  decision  in  Cousins  v.  Smith  is  not  very  intelligible,  even 
if  it  be  not  open  to  the  somewhat  personal  criticism  passed  on  it  by 
Lord  Campbell  in  his  Lives  of  the  Chancellors.  If  indeed  it  could  be 
plainly  proved  that  the  mere  formation  of  '  conferences,'  '  trusts,'  or 
'associations'  such  as  these  were  always  necessarily  injurious  to  the 
public  —  a  view  which  involves,  perhaps,  the  disputable  assumption  that 
in  a  country  of  free  trade,  and  one  which  is  not  under  the  iron  regime  of 
statutory  monopolies,  such  confederations  can  ever  be  really  success- 
ful —  and  if  the  evil  of  them  were  not  sufficiently  dealt  with  by  the 

§  HO 


378  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

meat  to  be  only  in  reasonable  restraint  of  trade,  and  was 
lawful  and  binding.  The  court  went  so  far  in  its  opinion 
as  to  intimate  that  the  exception  of  Montana  is  not 
essential  to  the  validity  of  the  contract,  if  the  agreement 

common  law  rule,  which  held  such  agreements  to  be  void  as  distinct 
from  holding  them  to  be  criminal,  there  might  be  some  reason  for 
thinking  that  the  common  law  ought  to  discover  within  its  arsenal  of 
sound  common-sense  principles  some  further  remedy  commensurate 
with  the  mischief.  Neither  of  these  assumptions  is,  to  my  mind,  at 
all  evident,  nor  is  it  the  province  of  judges  to  mould  and  stretch  the 
law  of  conspiracy  in  order  to  keep  pace  with  the  calculations  of  political 
economy.  If  peaceable  and  honest  combinations  of  capital  for  pur- 
poses of  trade  competition  are  to  be  struck  at,  it  must,  I  think,  be  by 
legislation,  for  I  do  not  see  that  they  are  under  the  ban  of  the  common 
law. 

"  In  the  result,  I  agree  with  Lord  Coleridge,  C.  J.,  and  differ,  with  re- 
gret, from  the  Master  of  the  Eolls.  The  substance  of  my  view  is  this, 
that  competition,  however  severe  and  egotistical,  if  unattended  by  cir- 
cumstances of  dishonesty,  intimidation,  molestation,  or  such  illegalities 
as  I  have  above  referred  to,  gives  rise  to  no  cause  of  action  at  common 
law.  I  myself  should  deem  it  to  be  a  misfortune  if  we  were  to  attempt 
to  prescribe  to  the  business  world  how  honest  and  peaceable  trade  was 
to  be  carried  on  in  a  case  where  no  such  illegal  elements  as  I  have  men- 
tioned exist,  or  were  to  adopt  some  standard  of  judicial '  reasonable- 
ness,' or  of  '  normal '  prices,  or  '  fair  freights,'  to  which  commercial 
adventurers,  otherwise  innocent,  were  bound  to  conform." 

Judge  Frye :  "  We  have  then  to  inquire  whether  mere  competition, 
directed  by  one  man  against  another,  is  ever  unlawful.  It  was  argued 
that  the  plaintiffs  have  a  legal  right  to  carry  on  their  trade,  and  that 
to  deprive  them  of  that  right  by  any  means  is  a  wrong.  But  the  right 
of  the  plaintiffs  to  trade  is  not  an  absolute  but  a  qualified  right  —  aright 
conditioned  by  the  like  right  in  the  defendants  and  all  Her  Majesty's 
subjects,  and  a  right  therefore  to  trade  subject  to  competition.  Now,  I 
know  no  limits  to  the  right  of  competition  in  the  defendants  —  I  mean, 
no  limits  in  law.  I  am  not  speaking  of  morals  or  good  manners.  To 
draw  a  line  between  fair  and  unfair  competition,  between  what  is  rea- 
sonable and  unreasonable,  passes  the  power  of  the  courts.  Competi- 
tion exists  when  two  or  more  persons  seek  to  possess  or  to  enjoy  the 
same  thing;  it  follows  that  the  success  of  one  must  be  the  failure  of 
another,  and  no  principle  of  law  enables  us  to  interfere  with  or  to 
moderate  that  success  or  that  failure  so  long  as  it  is  due  to  mere  com- 
petition. I  say  mere  competition,  for  I  do  not  doubt  that  it  is  unlawful 
and  actionable  for  one  man  to  Interfere  with  another's  trade  by  fraud 
or  misrepresentation,  or  by  molesting  his  customers,  or  those  who 

§  110 


COMMON   LAW   PROHIBITION   OF   COMBINATIONS.         379 

did  Dot  include  territory  which  was  beyond  the  sphere  of 
the  business  transferred  in,  connection  with  the  contract  in 
restraint  of  trade.  The  alleged  motive  of  the  purchaser 

would  be  his  customers,  whether  by  physical  obstruction  or  moral 
intimidation." 

Lord  Halsbury,  in  the  House  of  Lords : — 

"  The  learned  counsel  who  argued  the  case  for  the  appellants  with 
their  usual  force  and  ability,  were  pressed  from  time  to  time  by  some  of 
your  Lordships  to  point  out  what  act  of  unlawful  obstruction,  violence, 
molestation  or  interference  was  proved  against  the  associated  body  of 
traders,  and,  as  I  have  said,  the  only  wrongful  thing  upon  which  the 
learned  counsel  could  place  their  fingers  was  the  competition  which  I 
have  already  dealt  with.  Intimidation,  violence,  molestation,  or  the 
procuring  of  people  to  break  their  contracts,  are  all  of  them  unlawful 
acts ;  and  I  entertain  no  doubt  that  a  combination  to  procure  people  to 
do  such  acts  is  a  conspiracy  and  unlawful. 

"  The  sending  up  of  ships  to  Hankow,  which  in  itself  and  to  the 
knowledge  of  the  associated  traders,  would  be  unprofitable,  but  was  done 
for  the  purpose  of  influencing  other  traders  against  coming  there  and  so 
encouraging  a  ruinous  competition  is  the  one  fact  which  appears  to  be 
pointed  to  as  out  of  the  ordinary  course  of  trade.  My  Lords,  after  all, 
what  can  be  meant  by  'out  of  the  ordinary  course  of  trade?'  I  should 
rather  think,  as  a  fact,  that  it  is  very  commonly  within  the  ordinary 
course  of  trade  so  to  compete  for  a  time  as  to  render  trade  unprofitable 
to  your  rival  in  order  that  when  you  have  got  rid  of  him  you  may  appro- 
priate the  profits  of  the  entire  trade  to  yourself. 

"  I  entirely  adopt  and  make  my  own  what  was  said  by  Lord  Justice 
Bowen  in  the  court  below :  '  All  commercial  men  with  capital  are 
acquainted  with  the  ordinary  expedient  of  sowing  one  year  a  crop  of 
apparently  unfruitful  prices,  in  order  by  driving  competition  away  to 
reap  a  fuller  harvest  of  profit  in  the  future;  and  until  the  present  argu- 
ment at  the  bar  it  may  be  doubted  whether  ship-owners  or  merchants 
were  ever  deemed  to  be  bound  by  law  to  conform  to  some  imaginary 
4  normal '  standard  of  freights  or  prices,  or  that  law  courts  had  a  right 
to  say  to  them  in  respect  of  their  competitive  tariffs,  'Thus  far  shalt 
thou  go,  and  no  further.' 

"  Excluding  all  I  have  excluded  upon  my  view  of  the  facts,  it  is  very 
difficult  indeed  to  formulate  the  proposition.  What  is  the  wrong  done? 
What  legal  right  is  interfered  with?  What  coercion  of  the  mind,  or 
will  or  of  the  person  is  effected?  All  are  free  to  trade  upon  what  terms 
they  will,  and  nothing  has  been  done  except  in  rival  trading  which  can 
be  supposed  to  interfere  with  the  appellants'  interests." 
*********** 

Lord  Bramwell:  "  Where  is  such  a  contention  to  stop?    Suppose 

§  HO 


380  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

of  the  business  to  establish  a  monopoly  was  held  to  have 
no  effect  upon  the  validity  or  invalidity  of  the  agreement 
that  the  vendor  shall  abstain  from  establishing  a  rival 
business.1 


the  case  put  in  the  argument:  ID  a  small  town  there  are  two  shops, 
sufficient  for  the  wants  of  the  neighborhood,  making  only  a  reasonable 
profit.  They  are  threatened  with  a  third.  The  two  shopkeepers  agree 
to  warn  the  intending  shopkeeper  that  if  he  comes  they  will  lower  prices, 
and  can  afford  it  longer  than  he.  Have  they  committed  an  indictable 
offense?  Remember  the  conspiracy  is  the  offense,  and  they  have  con- 
spired. If  he,  being  warned,  does  not  set  up  his  shop,  has  he  a  cause  of 
action?  He  might  prove  damages.  He  might  show  that  from  his  skill 
he  would  have  beaten  one  or  both  of  the  others.  See  in  this  case  the 
judgment  of  Lord  Esher,  that  the  plaintiffs  might  recover  for  '  damages 
at  large  for  future  years.'  Would  a  ship-owner  who  had  intended  to 
send  his  ship  to  Shanghai,  but  desisted  owing  to  the  defendant's  agree- 
ment, and  on  being  told  by  them  they  would  deal  with  him  as  they  had 
with  the  plaintiff,  be  entitled  to  maintain  an  action  against  the  defend- 
ants !  Why  not?  If  yes,  why  not  every  ship-owner  who  could  say  he  had 
a  ship  fit  for  the  trade,  but  was  deterred  from  using  it? 

1  Diamond  Match  Co.  v.  Roeber,  106  New  York,  481,  the  court  said: 
"  Steam  and  electricity  have,  for  the  purpose  of  trade  and  commerce, 
almost  annihilated  distance,  and  the  whole  world  is  now  a  mart  for  the 
distribution  of  the  products  of  industry.  The  great  diffusion  of  wealth 
and  the  restless  activity  of  mankind  striving  to  better  their  condition 
has  greatly  enlarged  the  field  of  human  enterprise  and  created  a  vast 
number  of  new  industries,  which  give  scope  to  ingenuity  and  employ- 
ment for  capital  and  labor.  The  laws  no  longer  favor  the  granting  of 
exclusive  privileges,  and  to  a  great  extent  business  corporations  are 
practically  partnerships  and  may  be  organized  by  any  persons  who 
desire  to  unite  their  capital  or  skill  in  business,  leaving  a  free  field  to 
all  others  who  desire  for  the  same  or  similar  purposes  to  clothe  them- 
selves with  a  corporate  character.  The  tendency  of  recent  adjudications 
is  marked  in  the  direction  of  relaxing  the  rigor  of  the  doctrine  that  all 
contracts  in  general  restraint  of  trade  are  void,  irrespective  of  special 
circumstances.  Indeed,  it  has  of  late  been  denied  that  a  hard  and  fast 
rule  of  that  kind  has  ever  been  the  law  of  England  (Rousillon  v.  Rou- 
sillon,  14  L.  R.,  Ch.  Div.  351).  The  law  has,  for  centuries,  permitted 
contracts  in  partial  restraint  of  trade,  when  reasonable ;  and  in  Homer 
v.  Graves  (7  Bing.  735),  Chief  Justice  Tindal  considered  a  true  test  to 
be  "  whether  the  restraint  is  such  only  as  to  afford  a  fair  protection  to 
the  interests  of  the  party  in  favor  of  whom  it  is  given,  and  not  so  large 
as  to  interfere  with  the  interests  of  the  public."  When  the  restraint  is 
general,  but  at  the  same  time  is  co-extensive  only  with  the  interest  to 
§  110 


COMMON   LAW   PROHIBITION   OF   COMBINATIONS.         381 

But  the  fact,  that  the  common  law  did  not  punish,  either 
criminally  or  civilly,  those  who  enter  into  combinations 
for  the  prevention  of  competition,  does  not  necessarily  in- 
dicate any  constitutional  objection  to  statutory  changes  of 

be  protected  and  with  the  benefit  meant  to  be  conferred,  there  seems  to 
be  no  good  reason  why,  as  between  the  parties,  the  contract  is  not  as 
reasonable  as  when  the  interest  is  partial  and  there  is  a  corresponding 
partial  restraint.  And  is  there  any  real  public  interest  which  necessarily 
condemns  the  one  and  not  the  other?  It  is  an  encouragement  to  industry 
and  to  enterprise  in  building  up  a  trade,  that  a  man  shall  be  allowed  to 
sell  the  good-will  of  the  business  and  the  fruits  of  his  industry  upon 
the  best  terms  he  can  obtain.  If  his  business  extends  over  a  continent, 
does  public  policy  forbid  his  accompanying  the  sale  with  a  stipulation 
for  restraint  co- extensive  with  the  business  which  he  sells?  If  such  a 
contract  is  permitted,  is  the  seller  any  more  likely  to  become  a  burden 
on  the  public  than  a  man  who,  having  built  up  a  local  trade  only,  sells 
it,  binding  himself  not  to  carry  it  on  in  the  locality?  Are  the  oppor- 
tunities for  employment  and  for  the  exercise  of  useful  talents  so  shut  up 
and  hemmed  in  that  the  public  is  likely  to  lose  a  useful  member  of 
society  in  the  one  case  and  not  in  the  other?  Indeed,  what  public 
policy  requires  is  often  a  vague  and  difficult  inquiry.  It  is  clear  that 
public  policy  and  the  interests  of  society  favor  the  utmost  freedom  of 
contract,  within  the  law,  and  require  that  business  transactions  should 
not  be  trammelled  by  unnecessary  restrictions.  'If,'  said  Sir  George 
Jessel,  in  Printing  Company  v.  Sampson  (19  Eq.  Gas.,  L.  R.  462)  '  there 
is  one  thing  more  thau  any  other  which  public  policy  requires,  it  is  that 
men  of  full  age  and  competent  understanding  shall  have  the  utmost 
liberty  of  contracting,  and  that  contracts  when  entered  into 
freely  and  voluntarily,  shall  be  held  good  and  shall  be  enforced 
by  courts  of  justice.'  It  has  sometimes  been  suggested  that  the 
doctrine  that  contracts  in  general  restraint  of  trade  are  void,  is  founded 
in  part  upon  the  policy  of  preventing  monopolies,  which  are  opposed  to 
the  liberty  of  the  subject,  and  the  granting  of  which  by  the  king  under 
claim  of  royal  prerogative  led  to  conflicts  memorable  in  English  history. 
But  covenants  of  the  character  of  the  one  now  in  question  operate  simply 
to  prevent  the  covenantor  from  engaging  in  the  business  which  he  sells, 
so  as  to  protect  the  purchaser  in  the  enjoyment  of  what  he  has  pur- 
chased. To  the  extent  that  the  contract  prevents  the  vendor  from  carrying 
on  the  particular  trade,  it  deprives  the  community  of  any  benefit  it  might 
derive  from  his  entering  into  competition.  But  the  business  is  open  to 
all  others,  and  there  is  little  danger  that  the  public  will  suffer  harm  from 
lack  of  persons  to  engage  in  a  profitable  industry.  Such  contracts  do 
not  create  monopolies.  They  confer  no  special  or  exclusive  privilege. 
If  contracts  in  general  restraint  of  trade,  where  the  trade  is  general,  are 

§  no 


382  REGULATION    OF   TRADES    AND   OCCUPATIONS. 

the  law,  whereby  criminal  or  civil  remedies  are  provided 
for  preventing  the  formation  of  monopolistic  combinations. 
If  the  restrictions  upon  competition  and  trade  is  against 
public  policy,  and  may  for  that  reason  be  declared  illegal, 
so  that  the  courts  may  lawfully  refuse  to  the  parties  to  a 
contract  in  restraint  of  trade  the  right  to  enforce  such  a 
contract  or  agreement  by  judicial  process;  there  can  be  no 
serious  question  concerning  the  power  of  the  State  to  make 
such  restrictions  upon  trade  and  combinations  in  restraint 
of  trade  criminal  misdemeanors,  or  to  give  to  parties  suf- 
fering from  them  civil  actions  for  damages,  if  in  the  esti- 
mation of  the  legislature  the  public  welfare  should  require 
it.  The  power  to  declare  an  act  unlawful  being  admitted, 
the  choice  of  remedies  for  its  prevention  is  wholly  within 
the  discretion  of  the  legislative  power.1 

§111.  Industrial  and  corporate  trusts,  as  combinations 
in  restraint  of  trade.  —  It  does  not  take  a  very  keen  ob- 
server to  note  that,  for  the  past  fifteen  or  twenty  years,  the 
tendency  to  the  establishment  of  all-powerful  a«d  all-con- 
trolling combinations  of  capital,  in  the  prosecution  of  all 
kinds  of  business,  has  been  increasing  year  by  year  in  this 
country.  This  is  an  undoubted  economic  phenomenon  of 
the  modern  world  and  nowhere  is  it  more  manifest  or 
stronger  than  it  is  in  the  United  States.  The  rapid  accumu- 
lation of  vast  fortunes  has  inspired  some  of  their  possessors 

void  as  tending  to  monopolies,  contracts  in  partial  restraint  where  the 
trade  is  local,  are  subject  to  the  same  objection,  because  they  deprive 
the  local  community  of  the  services  of  the  covenantor  in  the  particular 
trade  or  calling,  and  prevent  his  becoming  a  competitor  with  the  cove- 
nantee.  We  are  not  aware  of  any  rule  of  law  which  makes  the  motive 
of  the  covenantee  the  test  of  the  validity  of  such  a  contract.  On  the 
contrary  we  suppose  a  party  may  legally  purchase  the  trade  and  business 
of  another  for  the  very  purpose  of  preventing  competition,  and  the  valid- 
ity of  the  contract,  if  supported  by  a  consideration,  will  depend  upon  its 
reasonableness  as  between  the  parties." 

1  See  post,  §  112,  for  the  discussion  and  explanation  of  modern  anti- 
trust and  anti-monopolistic  laws. 

«  111 


INDUSTRIAL   AND    CORPORATE   TRUSTS.  383 

with  the  dirsire  for  the  acquisition  of  power  through  the 
control  of  industries  of  such  great  extension  and  scope,  that 
they  may  earn  the  appellation  of  kings  instead  of  princes  of 
industry.  If  this  economic  tendency  were  left  unchecked, 
either  by  economic  conditions  or  law,  the  full  fruition  of 
it  would  be  a  menace  to  the  liberty  of  the  individual,  and 
to  the  stability  of  the  American  States  as  popular  govern- 
ments, so  great  that  the  fear  of  the  people  of  England,  of 
the  danger  which  threatened  them  from  the  dream  of 
Thelusson  that  the  provisions  of  his  will  would  make  his 
posterity  one  of  the  powerful  families  of  England,1 
would  seem  in  comparison  to  take  on  the  form  of  opera 
bouffe. 

The  first  distinct  manifestation  of  this  growing  tendency 
to  the  formation  of  large  combinations  of  capital  is  the 
rapid  increase  of  industrial  corporations,  so  that  the  United 
States  exceeds  all  other  countries  in  the  number  and  variety 
of  private  corporations,  and  in  the  amount  of  their  aggre- 
gate capital.  But  for  many  financial  reasons,  the  size  of 
an  industrial  corporation  is  necessarily  limited  ;  and  it  is  a 
common  thing  to  find  a  number  of  corporations,  having  large 
capital,  in  the  samebusiness  or  industry,  competing  with  each 
other,  and  forcing  the  price  &f  commodities  and  services  down 
so  low  that  the  returns  on  the  capital  invested  grow  less  and 
less,  until  the  rival  corporations  find  themselves  unable 
to  declare  any  dividends  at  all.  Contracts  or  agreements, 
entered  into  by  these  competing  corporations,  to  maintain 

1  Thelusson  v.  Woodford,  1  B.  &  P.  N.  R.  396;  s.  c.  4  Ves.  227.  The- 
lusson provided  in  his  will  that  all  his  estate,  principal  and  income, 
should  be  held  intact  for  the  purpose  of  accumulation,  until  the  death  of 
all  his  heirs,  living  at  his  death,  and  upon  the  death  of  the  survivor  of 
these  heirs,  the  property  was  to  be  given  to  certain  descendants  de- 
scribed in  the  will.  This  will,  and  the  litigation  growing  out  of  it,  created 
such  a  sensation  that  Parliament  passed  a  statute,  which  prohibited  the 
accumulation  of  income  and  profits  for  a  longer  period  than  the  life  of 
the  grantor,  and  twenty-  one  years  thereafter  or  the  minority  of  the  bene- 
ficiary. See  Tiedeman  on  Real  Property,  §  545. 

§  111 


384  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

a  certain  scale  of  prices,  and  to  raise  or  lower  prices  in 
concert,  and  in  obedience  to  the  rulings  of  the  association, 
have  not  always  proved  effectual  in  suppressing  ruinous 
competition ;  because,  as  we  have  seen  in  preceding  sec- 
tions, such  contracts  are  in  restraint  of  trade,  and  there- 
fore non-enforceable  in  the  courts.  A  financial  genius  in 
the  United  States  proposed  that,  to  secure  absolute  uni- 
formity in  the  management  and  conduct  of  a  business  by 
a  number  of  rival  corporations,  all  the  stockholders  of 
the  several  corporations  should  transfer  to  a  board  of 
trustees  their  respective  holdings  of  stock  in  the  different 
corporations  and  receive  back  from  the  trustees  trust 
certificates,  representing  their  rights  in  the  stock  cer- 
tificates. Under  the  terms  of  the  deed  of  trust,  the 
trustees,  who  thus  appeared  as  the  voting  stockholders  in 
each  one  of  the  corporations,  would  conduct  the  business 
of  all  of  them  as  one  business  and  in  accordance  with  the 
plans  and  principles  of  action,  which  had  been  decided 
upon  by  the  trustees.  And  the  profits  of  the  joint  busi- 
ness of  these  corporations  would  be  distributed  among  the 
stockholders  pro  rata  on  their  trust  certificates.  Under 
such  an  ingenious  scheme,  there  was  no  difficulty  in  en- 
forcing obedience  to  the  command  of  the  association  on 
the  part  of  the  corporations,  which  composed  the  com- 
bination; for  the  trustees,  as  the  holders  of  a  controlling 
interest  in  the  stock  of  each  one  of  the  corporations,  could 
secure,  in  the  corporate  meetings  of  each  one,  corporate 
adoption  of  the  policy  which  had  been  formulated  by  the 
trustees. 

Thus  was  established  a  form  of  combination  in  restraint 
of  trade,  which  was  limited  only  by  the  amount  of  capital 
which  was  invested  in  the  joint  enterprise  and  which  did  not 
need  the  special  sanction  of  the  law,  or  its  intervention 
by  judici.il  process,  in  order  to  enforce  the  decrees  of  the 
combination  upon  all  its  members.  Nor  would  it  appear 
that  such  a  trust,  apart  from  the  motive  of  its  creation, 
§  111 


INDUSTRIAL    AND    CORPORATE    TRUSTS.  385 

differed  in  legal  character  from  the  thousand  and  one  active 
trusts,  whose  legality  has  never  been  questioned. 

If,  in  the  creation  of  such  a  trust,  the  parties  thereto 
had  violated  any  rule  of  law,  it  must  be  in  some  secondary 
matter,  and  not  directly.  For  independently  of  modern 
statutes,  which  will  be  considered  in  the  next  section,  no 
combination  of  capital  with  monopolistic  intent  is  so  far 
declared  illegal  as  to  subject  the  participants  therein  to  any 
criminal  or  civil  liability.  The  most  that  the  common 
law  did  in  discouraging  such  combinations  was  to  ignore 
them,  and  deny  the  aid  of  judicial  process  in  enforcing 
the  agreements  on  the  members  of  the  combination.  And 
the  need  of  judicial  process  had  been  obviated  by  these 
creators  of  the  industrial  trust. 

The  original  industrial  trust  was  the  Standard  Oil 
Trust.  Possibly,  the  next  great  trust  to  be  formed  was 
the  American  Sugar  Trust.  Since  then  a  large  number 
of  so-called  trusts  have  been  formed,  viz. :  Milk,  rubber, 
cotton-seed  oil,  butchers',  glass,  furniture,  etc.  But  it 
needs  to  be  stated  in  this  connection  that  the  phrase  «*  in- 
dustrial trust  "  has  been  made  to  serve  in  the  popular 
mind,  as  well  as  in  legislative  enactments,  as  a  general 
term,  to  include  all  sorts  and  conditions  of  combinations  of 
capital  in  restraint  of  trade,  wherever  the  motive  of  the 
combination  is  shown  to  be  the  establishment  of  a  virtual 
monopoly  in  any  particular  industry,  it  matters  not  what 
form  the  combination  may  take,  and  whether  the  combina- 
tion involved  the  creation  of  a  trust  or  not.  I  desire  to 
have  it  plainly  understood  that  what  I  have  to  say  in  the 
present  section  has  reference  only  to  those  combinations 
in  restraint  of  trade,  in  which  the  object  of  the  combina- 
tion is  attained  by  the  application  of  the  ordinary  law  of 
trusts  to  the  particular  conditions  of  industrial  competition 
and  the  corporate  rights  and  powers,  under  the  general 
law  of  corporations.  In  view  of  the  fact  that  many  of 
these  so-called  trusts  have  been  formed  ind  have  been 

25  §  111 


386  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

declared  to  be  illegal,  since  the  enactment  of 
statutes,  which  have  provided  for  the  avoidance  and 
punishment  of  all  combinations  in  restraint  of  trade, 
care  must  be  observed  in  applying  the  propositions 
here  set  forth  in  the  present  section,  to  any  hut  the 
Standard  Oil  and  the  Sugar  Trust.  To  make  still  clearer 
the  sense  in  which  the  term  "  industrial  trust  "  is  here 
employed,  I  will  define  it,  using  the  language  of  Mr.  Charles 
W.  Baker,  found  in  his  book  "  Monopolies  and  the  Peo- 
ple:"  "  A  trust  is  a  combination  to  restrain  competition 
among  producers,  formed  by  placing  the  various  producing 
properties  (mills,  factories,  etc.)  in  the  hands  of  a  board 
of  trustees,  who  are  empowered  to  direct  the  operations  of 
production  and  sale,  as  if  the  properties  were  all  under  a 
single  ownership  and  management."  * 

If  a  number  of  individuals  or  partnerships  or  of  individ- 
uals and  partnerships,  all  engaged  in  the  prosecution  of  the 
same  business,  were  to  transfer  their  businesses,  plants  and 
capital  to  two  or  more  trustees,  who  were  charged  with  the 
joint  management  of  the  business  and  property  of  all  the 
parties  to  the  trust  deed,  so  as  to  secure  the  exclusive  con- 
trol of  the  business,  such  a  trust  would  clearly  come  within 
the  provisions  of  the  law  of  trust,  and  would  be  legal  and 
operative,  as  long  as  the  purpose  of  the  trust  was  not  de- 
clared by  statute  to  be  an  actionable  wrong.  And  if  the 
parties  to  the  Standard  Oil  and  Sugar  Trusts  had  been 
individuals  or  partnerships,  the  judgments,  pronouncing 
their  dissolution,  would  not  have  been  delivered;  for  such 
trusts  when  composed  of  individuals,  were,  prior  to  the 

1  In  the  report  of  a  committee  of  the  legislature  of  New  York,  a  trust 
is  defined  as  a  combination  "to  destroy  competition  and  to  restrain  trade 
through  the  stockholders  therein  combining  with  other  corporations  or 
stockholders  to  form  a  joint-stock  company  of  corporations  and  placing 
all  powers  in  the  hands  of  trustees."  So  far  as  this  definition  includes 
any  other  combinations  than  those  which  are  accomplished  by  the  estab- 
lishment of  a  trust,  it  includes  more  than  what  is  properly  described  as 
an  industrial  trust. 
§  111 


INDUSTRIAL  AND  CORPORATE  TRUSTS.        387 

enactment  of  anti-trust  statutes,  lawful  combinations,  so 
far  as  the  parties  thereto  were  not  liable  to  any  criminal  or 
civil  action  on  account  of  their  participation  therein;  while 
they  were  illegal  restraints  upon  trade,  in  that  the  courts 
would  not  aid  them  in  enforcing  any  executory  agree- 
ments of  the  trust.  But  these  trusts  were  composed  of 
stockholders  of  competing  corporations,  engaged  in  the 
same  business,  and  that  fact  gave  the  courts  the  oppor- 
tunity to  destroy  the  trusts  by  destroying  the  corporations, 
whose  stockholders  composed  the  trusts.  The  courts  of 
New  York  and  Ohio  held  that  the  corporations  which  com- 
posed the  trusts,  through  the  joint  actions  of  their  respec- 
tive stockholders,  had  exceeded  their  corporate  powers,  by 
transferring  the  complete  control  of  their  respective  prop- 
erties and  businesses  to  a  board  of  trustees,  to  such  a  de- 
gree that  their  charters  became  subject  to  forfeiture.1 

1  In  People  v.  North  River  Sugar  Refining  Co.,  121  N.  Y.  582,  in 
pronouncing  the  act  of  a  corporation  in  joining  the  trust  as  ultra 
vires,  the  court  said :  "It  is  quite  clear  that  the  effect  of  the  defend- 
ant's action  was  to  divest  itself  of  the  essential  and  vital  elements  of 
its  franchise  by  placing  them  in  trust;  to  accept  from  the  State  the 
gift  of  corporate  life,  only  to  disregard  the  conditions  upon  which  it 
was  given;  to  receive  its  powers  and  privileges  merely  to  put  them 
in  pawn;  and  to  give  away  to  an  irresponsible  board  its  entire  inde- 
pendence and  self-control.  It  has  helped  to  create  an  anomalous 
trust,  which  is,  in  substance  and  effect,  a  partnership  of  twenty  separate 
corporations.  It  is  a  violation  of  law  for  corporations  to  enter  into 
a  partnership.  The  vital  characteristics  of  the  corporaiions  are  of 
necessity  drowned  in  the  paramount  authority  of  the  partnership."  The 
articles  of  agreement  of  the  Sugar  Trust  are  published  in  full  in  this 
case.  In  the  case  of  the  State  v.  Standard  Oil  Co.,  49  Ohio  St.  137,  in 
which  the  articles  of  agreement  of  the  oil  trust  are  to  be  found  printed 
in  full,  the  court  said:  "That  the  nature  of  the  agreement  is  such  as 
to  preclude  the  defendant  from  becoming  a  party  to  it,  is,  we  think,  too 
clear  to  require  much  consideration  by  us.  In  the  first  place,  whether 
the  agreement  should  be  regarded  as  amounting  to  a  partnership 
between  the  several  companies,  limited  partnerships,  and  Individ* 
uals  who  are  parties  to  it,  it  is  clear  that  its  observance  must  subject 
the  defendant  to  a  control  inconsistent  with  its  character  as  a  corpora- 
tion. Under  the  agreement,  all  but  seven  of  the  shares  of  the  capital 
stock  of  the  company  have  been  transferred  by  the  real  owners  to  the 

§  HI 


388  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

In  a  recent  case  in  New  York,  a  gas  company  of  the  city 
of  Buffalo,  entered  into  a  contract  to  issue  its  own  stock 
in  exchange  for  all  the  stock  of  a  competing  company. 
This  was  done  to  put  an  end  to  the  ruinous  competition 
between  them.  It  was  held  by  the  Appellate  Division  of 
the  Supreme  Court  that  this  contract  did  not  involve  the 
creation  of  a  monopoly,  in  contravention  of  Section  7  of  the 
corporation  law.1  But  did  not  the  competing  company's 
stockholders  violate  the  rule  of  the  sugar  trust  case  by 
transferring  their  stock  to  the  first  gas  company,  and  re- 
ceiving the  latter's  stock  in  exchange?  Did  not  this 
primary  corporation  take  the  stock  assigned  as  trustees,  in 
the  absence  of  a  technical  consolidation  of  the  two  com- 
panies? 

The  most  striking  evidence  of  the  persistency  of  the 
economic  demand  for  large  combinations  of  capital  in  one 

trustees  of  the  trust,  who  hold  them  in  trust  for  such  owners ;  and  being 
enjoined  by  the  terms  of  the  agreement  to  endeavor  to  have  the  '  affairs ' 
of  the  several  companies  conducted  in  a  manner  most  conducive  to  the 
interests  of  the  holders  of  the  trust  certificates  issued  by  the  trust,  the 
trustees  have  the  right,  in  virtue  of  their  apparent  legal  ownership  and 
by  the  terms  of  the  agreement,  to  select  such  directors  of  the  company 
as  they  may  see  fit;  nay  more,  may  in  fact  select  themselves.  The  law 
requires  that  a  corporation  should  be  controlled  and  managed  by  its 
directors  in  the  interests  of  its  own  stockholders,  and  conformably  to 
the  purpose  for  which  it  was  created  by  the  laws  of  its  State.  By  this 
agreement,  indirectly  it  is  true,  but  none  the  less  effectually,  the  de- 
fendant is  controlled  and  managed  by  the  Standard  Oil  Trust,  an 
association  with  its  principal  place  of  business  in  New  York  City,  and 
organized  for  a  purpose  contrary  to  the  policy  of  our  laws.  Its  object 
was  to  establish  a  virtual  monopoly  of  the  business  of  producing  petro- 
leum, and  of  manufacturing,  refining  and  dealing  in  it  and  all  its  prod- 
ucts throughout  the  country,  and  by  which  it  might  not  merely  control 
the  production,  but  the  price  at  its  pleasure.  All  such  associations  are 
contrary  to  the  policy  of  our  State,  and  void."  See,  also,  to  the  same 
effect,  National  Harrow  Co,  v.  Hench,  83  F.  36;  27  C.  C.  A.  349;  Mai- 
lory  v.  Hanaur  Oil  Works,  86  Tenn.  602;  and,  in  the  case  of  the  Distil- 
lers' and  Cattle  Feeders'  Trust,  State  v.  Nebraska  Distilling  Co.,  29 
Neb.  700;  Bishop  v.  Am.  Preservers  Co.,  157  111.  284;  Am.  Fire  Ins.  Co. 
v.  State,  75  Miss.  24. 

1  Rafferty  v.  Baffalo  City  Gas  Co.,  56  N.  Y.  S.  288;  37  App.  Div.  618. 

§  HI 


INDUSTRIAL   AND   CORPORATE   TRUSTS.  389 

business  under  one  management,  and  the  consequent 
establishment  of  virtual  monopolies,  is  the  various 
methods  pursued  by  the  trusts,  whose  dissolution  was 
forced  by  these  adverse  judgments  of  the  courts.  The 
affairs  of  the  Standard  Oil  Trust  were  placed  in  the  hands 
of  receivers  for  final  settlement  and  winding  up  of  its 
business.  These  receivers  issued  trust  certificates,  trans- 
ferred them  as  they  were  sold  and  bought,  and  otherwise 
conducted  this  immense  business,  as  if  there  had  been  no 
decree  of  dissolution;  and,  although  some  years  had 
elapsed,  the  receivers  were  no  nearer  the  conclusion  of 
their  business  than  they  were  immediately  after  their  ap- 
pointment; until,  in  the  year  1899,  the  activity  of  the 
Ohio  courts,  in  forcing  the  trust  to  a  settlement  of  its 
affairs,  compelled  the  capitalists  interested  to  follow  the 
example  of  the  sugar  trust,  as  explained  in  subsequent  par- 
agraphs of  the  present  section,  and  to  form  one  huge  cor- 
poration, under  the  laws  of  New  Jersey,  combining  all  the 
interests  and  plants  of  the  old  trust  under  one  corporate 
management. 

The  Chicago  Gas  Trust  was  formed  into  a  duly  incor- 
porated company,  one  of  the  objects  of  whose  incorporation, 
as  was  stated  in  the  certificate  of  incorporation,  was  "  to 
purchase  and  hold  or  sell  the  capital  stock,  or  purchase  or 
lease,  or  operate  the  property,  plant,  good-will,  rights  and 
franchises  of  any  gas  works,  or  gas  company  or  com- 
panies," and  the  Supreme  Court  of  Illinois  has  held  the 
incorporation  to  be  illegal.1 

1  People  v.  Chicago  Gas  Trust  Co.,  130  111.  268.  The  court  said: 
"  Of  what  avail  is  it  that  any  number  of  gas  companies  may  be  formed 
under  the  general  incorporation  law,  if  a  giant  trust  company  can  be 
clothed  with  the  power  of  buying  up  and  holding  the  stock  and  property 
of  such  companies,  and,  through  the  control  thereby  attained,  can  direct 
all  their  operations  and  weld  them  into  one  huge  combination?  The 
several  privileges  or  franchises  intended  to  be  exercised  by  a 
number  of  companies  are  thus  vested  exclusively  in  a  single  cor- 
poration. To  create  one  corporation  for  the  express  purpose  of  en- 

§  HI 


390  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

It  would  seem  that  the  corporation  law  would  be  equally 
violated,  if,  for  the  purpose  of  effecting  a  large  combina- 
tion of  capital  in  a  particular  industry  and  the  consequent 
creation  of  a  virtual  monopoly  therein,  a  corporation  were 
to  enter  upon  the  general  policy  of  leasing  the  plants  and 

abling  it  to  control  all  the  corporations  engaged  in  a  certain  kind 
of  business,  and  particularly  a  business  of  a  public  character,  is  not 
only  opposed  to  the  public  policy  of  the  State,  but  it  is  in  contravention 
of  the  spirit,  if  not  the  letter,  of  the  constitution.  That  the  exercise  of 
the  power  attempted  to  be  conferred  upon  the  appellee  company  must 
result  in  the  creation  of  a  monopoly,  results  from  the  very  nature  of  the 
power  itself.  If  the  privilege  of  purchasing  and  holding  all  the  shares 
of  the  stock  in  all  the  gas  companies  of  Chicago  can  be  lawfully  conferred 
upon  appellee  under  the  general  incorporation  act,  it  can  be  lawfully 
conferred  upon  any  other  corporation  formed  for  the  purpose  of  buying 
and  holding  all  the  shares  of  stock  of  said  gas  companies.  The  design 
of  that  act  was,  that  any  number  of  corporations  might  be  organized  to 
engage  in  the  same  business,  if  it  should  be  deemed  desirable.  But  the 
business  now  under  consideration  could  hardly  be  exercised  by  two  or 
three  corporations.  Suppose  that,  after  the  appellee  had  purchased  and 
become  the  holder  of  the  majority  of  shares  of  stock  of  the  four  companies 
in  Chicago,  another  corporation  had  been  organized  with  the  same  object 
in  view  —  that  is  to  say,  for  the  purpose  of  purchasing  and  holding  a 
majority  of  the  shares  of  the  stock  of  the  gas  companies  in  Chicago, 
there  being  only  four  of  such  companies  —  what  would  there  be  for  the 
corporation  last  formed  to  do?  It  could  not  carry  out  the  object  of  its 
creation,  because  the  stock  it  was  formed  to  buy  was  already  owned  by 
an  existing  corporation.  Hence,  to  grant  to  the  appellee  the  privilege  of 
purchasing  and  holding  the  capital  stock  of  any  gas  company  in  Chicago, 
is  to  grant  to  it  a  privilege  which  is  exclusive  in  its  character.  It  is 
making  use  of  the  general  incorporation  law  to  secure  a  special  privilege, 
immunity  or  franchise;  it  is  obtaining  a  special  charter  under  the  cover 
and  through  the  machinery  of  that  law,  for  a  purpose  forbidden  by  the 
constitution.  To  create  one  corporation,  that  it  may  destroy  the  energies 
of  all  other  corporations  of  a  given  kind,  and  suck  their  life-blood  out  of 
them,  is  not  a  'lawful  purpose.'  "  See,  also,  to  the  same  effect,  adopt- 
ing the  same  argument,  Distilling  &  Cattle-Feeding  Co.  v.  People,  156  111. 
448;  National  Harrow  Co.  v.  Hench,  76  F.  667.  It  seems  to  be  a  well- 
settled  proposition  of  American  corporation  law,  that  it  is  ultra  vires  for 
an  ordinary  corporation,  without  express  authority,  to  purchase  and  hold 
the  stock  of  other  corporations.  Franklin  Co.  v.  Lewiston  Sav.  Bank,  68 
Me.  43;  Pierson  v.  McCurdy,  33  Hun,  520;  Central  R.  R.  Co.  v.  Penn.  Ry. 
Co.,  31  N.  J.  Eq.  475;  Central  R.  R.  Co.  v.  Collins,  40  Ga.  582;  Buckeye 
Marble  &  Freestone  Co.  v.  Harvey,  92  Tenn.  115;  New  Orleans  F.  &  H.  S. 

§  HI 


INDUSTRIAL    AND    CORPORATE   TRUSTS.  391 

other  property  of  a  rival  corporation.  And  this  has  been 
the  conclusion  of  the  courts.1  Indeed,  the  strength  of  the 
demand  for  restrictions  upon  the  creation  of  virtual  mo- 
nopolies is  not  more  strikingly  demonstrated  than  in  the 
proposition  laid  down  by  a  number  of  our  courts,  that, 
while  a  private  corporation,  whose  business  is  not  affected 
with  a  public  interest,  without  express  authority  from  the 
legislature,  may  sell  all  its  property  and  plant  to  another 
corporation,  and  the  sale  be  in  every  way  valid ; 2  it  is  not 
so,  if  the  business  is  affected  with  a  public  interest,  which 
is  interpreted  to  mean  that  the  business  is  such  in  its  pro- 
portions and  its  control  over  some  article  of  necessity,  that 
a  grievous  monopoly  may  thereby  be  created.  In  such  a 
case,  it  has  been  held  to  be  unlawful  for  a  corporation, 
without  express  legislative  authority,  to  make  a  complete 
transfer  of  its  plant,  property  and  franchises.3  But  it 
has  been  held  in  a  recent  case  that  the  mere  fact,  that 


T.  Co.  v.  Ocean  Dry  Dock  Co.,  28  La.  Ann.  173;  Franklin  Bank  v.  Com- 
mercial  Bank,  36  Ohio  St.  350;  Valley  Ry.  Co.  v.  Lake  Erie  Iron  Co.,  46 
Ohio  St.  44.  But  see  Booth  v.  Robinson,  55  Md.  433;  National  Bank  of 
Jefferson  v.  Tex.  Investment  Co.,  74  Tex.  421.  And  see  the  very  recent 
case  of  Rafferty  v.  Buffalo  City  Gas  Co,,  66  N.  Y.  S.  288;  37  App.  Div.  618. 

1  Stockton  v.  Central  R.  R.  Co.  of  N,  J.,  50  N.  J.  Eq.  52;  s.  c.  489. 
In  this  case  the  railroad  company  had  leased  all  its  rights,  property, 
and  franchises,  including  forty  auxiliary  roads,  which  were  leased  or 
otherwise  controlled  by  it,  to    a  foreign  railroad  corporation  for  999 
years,  which  had,  by  the  acquisition  of  the  control  of  other  railroads, 
been  developed  into  a  huge  combination  of  railroads,  which  furnished 
the  carrying  accommodations  for  the  coal  regions  of  Pennsylvania.    The 
lease  was  held  to  be  in  restraint  of  trade,  and  equity  would  restrain 
the  enforcement  of  the  lease.     See,  also,  Anheuser-Busch  Brewing  As- 
sociation v.  Houck,  88  Tex.    184;  American   Strawboard  Co.  ».  Peorla 
Strawboard  Co.,  65  111.  App.  502. 

2  Bi-spool   Sewing  Machine   Co.  v.  Acme  Mfg.  Co.,  153  Mass.  404; 
Holmes  &  Griggs  Mfg.  Co.  v.   Holmes  &  Wessell  Metal  Co.,  127  N.  Y. 
252;  Ardesco  Oil  Co.  v.  North  Am.  Oil,  etc.,  Co.,  66  Pa.  St.  375. 

8  See  Penn.  Ry.  Co.  v.  St.  Louis,  A.  &  T.  H.  R.  R.  Co.,  118  U.  S.  290, 
630;  Chicago  Gaslight  &  Coke  Co.  ».  People's  Gaslight  &  Coke  Co.,  121 
111.  530;  Fietsam  v.  Hay,  122  111.  293;  Small  v.  Minneapolis  Electro- 
Matrix  Co.,  45  Minn.  264;  State  v.  Nebraska  Distilling  Co.,  29  Neb.  700. 

§  111 


392  REGULATION   OF  TRADES  AND   OCCUPATIONS. 

a  linseed  oil  company  had  been  purchasing  a  large  num- 
ber of  oil  mills  and  plants  throughout  the  country,  and 
was  doing  an  extensive  business,  would  not  constitute  a 
violation  of  the  anti-trust  laws.1 

As  long  as  the  corporation  law  is  not  changed,  the  only 
successful  method  of  circumventing  the  judicial  antagonism 
of  large  trade  combinations  and  virtual  monopolies,  is  that 
which  was  adopted  by  the  American  Sugar  Trust,  viz.: 
the  corporate  consolidation  of  all  the  corporations  which 
had  composed  the  trust.  As  long  as  the  corporation  law  of 
the  State  does  not  limit  the  capital  and  volume  of  business 
of  a  corporation,  the  consolidation  of  two  or  more  corpo- 
rations into  one  is  clearly  legal,  even  though  the  object  of 
the  consolidation  be  to  suppress  competition  and  to  estab- 
lish a  virtual  monopoly ;  except  where  the  mere  purpose  of 
suppressing  competition  by  lawful  means  is  prohibited  by 
the  anti-trust  statutes.2 

§  112.  Modern  statutory  legislation  against  trade  com- 
binations, virtual  monopolies,  and  contracts  in  restraint 
of  trade. — Finding  that  the  common  law  was  insuffi- 
cient to  suppress  or  even  restrain  the  growth  of  large 
trade  combinations,  public  opinion  in  this  country  has 
demanded  and  secured  the  enactment  in  almost  every 
State  of  statutes,  which  not  only  declare  all  contracts  and 
combinations  in  restraint  of  trade  to  be  non-enforceable, 
as  the  common  law  treated  unreasonable  restraints  of  trade ; 
but  went  further,  and  made  two  modifications  of  the  com- 
mon law,  which  are  found  in  all  of  these  statutes,  however 
variant  in  detail  they  may  be  in  other  respects,  viz. :  first, 
that  the  act  of  entering  into  such  a  combination  or  con- 

1  Coquard  v.  National  Linseed  Oil  Co.,  171  111.  480.    See,  to  same 
effect,  Trenton  Potteries  Co.   r.   Olyphant  (N.  J.  Eq.  '99),  43  A.  723, 
modifying  decree  in  a.  c.  66  N.  J.  Eq.   680.    See  Cravens  v.  Carter- 
Grume  Co.,  92  Fed.  479;  34  C.  C.  A.  479. 
2  As  to  which,  see  post,  next  section. 

§  112 


STATUTORY  LEGISLATION  AGAINST  TRADE  COMBINATIONS.  393 

tract  is  itself  an  actionable  conspiracy,  which  is  punish- 
able criminally  or  actionable  civilly,  according  to  the 
provisions  of  the  particular  statute;  and,  secondly,  that  all 
contracts,  agreements,  or  combinations,  which  have  the 
purpose  or  effect  of  restraining  trade  and  suppressing 
competition,  are  illegal,  whether  the  restraint  was  reason- 
able or  unreasonable.  Even  Congress  was  prevailed  upon 
to  pass  such  an  act.  In  the  note  below,  the  United  States 
and  New  York  anti-trust  statutes  are  given  in  full,  so  far  as 
they  bear  upon  the  subject  under  inquiry,  and  the  synopses 
of  the  statutes  in  some  of  the  other  States  are  added,  so 
that  the  reader  may  appreciate  the  sweeping  changes,  which 
these  statutes  have  made  in  the  common  law,  relating  to 
the  same  matters.1 

1  The  United  States  Statute  — 26  Stat.  at  Large,  209,  Ch.  647. 

"  An  act  to  protect  trade  and  commerce  against  unlawful  restraints 
and  monopolies. 

Sec.  1.  Every  contract,  combination  in  the  form  of  trust  or  otherwise, 
or  conspiracy  in  restraint  of  trade  or  commerce  among  the  several  States, 
or  with  foreign  nations,  is  hereby  declared  to  be  illegal.  Every  person 
who  shall  make  any  such  contract  or  engage  in  any  such  combination  or 
conspiracy  shall  be  deemed  guilty  of  a  misdemeanor  and  on  conviction 
thereof  shall  be  punished  by  a  fine  not  exceeding  five  thousand  dollars, 
or  by  imprisonment  not  exceeding  one  year,  or  by  both  said  punishments 
in  the  discretion  of  the  court. 

Sec.  2.  Every  person  who  shall  monopolize  or  attempt  to  monopolize, 
or  combine  or  conspire  with  any  other  person  or  persons  to  monopolize 
any  part  of  the  trade  or  commerce  among  the  several  States,  or  with 
foreign  nations,  shall  be  deemed  guilty  of  a  misdemeanor,  and  on  con- 
viction thereof  shall  be  punished  by  fine  not  exceeding  five  thousand 
dollars,  or  by  imprisonment  not  exceeding  one  year,  or  by  both  said  pun- 
ishments in  the  discretion  of  the  court." 

The  development  of  the  law  in  New  York  State  is  peculiarly  instructive, 
as  showing  the  strength  of  the  forces  which  compel  the  formation  of  the 
prohibited  trade  combinations. 

Laws  of  1893,  ch.  716:  — 

Sec.  1.  Every  contract  or  combination,  in  the  form  of  trust  or  other- 
wise, made  after  the  passage  of  this  act,  whereby  competition  in  the  State 
of  New  York  in  the  supply  or  the  price  of  any  article  or  commodity  of 
common  use  in  said  State  for  the  support  of  life  and  health  may  be  re- 

§  112 


394  REGULATION   OF   TRADES    AND   OCCUPATIONS. 

It  is  believed  that  the  constitutionality  of  none  of  these 
numerous  anti-trust  statutes  has  been  successfully  ques- 
tioned on  the  ground  that  they  infringed  the  personal  lib- 
erty of  contract,  in  punishing  civilly  or  criminally  the 

strained  or  prevented  for  the  purpose  of  advancing  prices,  is  hereby  de- 
clared illegal. 

Sec.  3,  Added  by  L.  1896,  Ch.  267. 

Sec.  3.  Every  corporation  or  officer  thereof,  that  shall  make  any  con- 
tract, arrangement  or  agreement,  or  shall  enter  into  any  combination  or 
conspiracy  for  the  purpose  of  restraining  or  preventing  competition  in 
the  supply  or  price  of  any  article  or  commodity  in  common  use  in  this 
State,  or  that  shall  attempt  or  actually  conduct  any  business  in  this  State 
pursuant  to  any  such  contract,  arrangement,  agreement  or  combination, 
wherever  the  same  may  be  made,  or  shall  in  any  manner  in  this  State 
engage  or  aid  in  carrying  out  or  executing  the  agreements  contained  in 
any  such  contract  or  arrangement,  wherever  the  same  may  be  made,  shall 
be  deemed  guilty  of  a  misdemeanor.  The  attorney-general  may,  in  addi- 
tion to  the  power  now  conferred  by  law,  bring  an  action  in  the  name  and 
in  behalf  of  the  people  of  the  State  against  one  or  more  trustees,  direct- 
ors, managers  or  other  officers  of  a  corporation,  or  against  any  corpora- 
tion, foreign  or  domestic,  to  restrain  them  or  either  of  them  from  carry- 
ing out  in  this  State  any  such  contract,  combination  or  business  in  this 
State,  where  such  contract,  combination  or  business  is  threatened,  or 
there  is  good  reason  to  apprehend  that  the  same  may  be  made." 

Act  of  1897:  — 

Sec.  1.  Every  contract,  agreement,  arrangement  or  combination 
whereby  a  monopoly  in  the  manufacture,  production  or  sale  in  this 
State  of  any  article  or  commodity  of  common  use  is  or  may  be  created, 
established  or  maintained,  or  whereby  trade  or  commerce  in  this  State 
in  any  such  article  or  commodity  is  or  may  be  restricted,  or  whereby 
competition  in  this  State  in  the  supply  or  price  of  any  such  article  or 
commodity  is  or  may  be  restrained  or  prevented,  or  whereby  for  the 
purpose  of  creating,  establishing  or  maintaining  a  monopoly  within  this 
State  of  the  manufacture,  production  or  sale  of  any  such  article  or  com- 
modity, the  free  pursuit  of  any  lawful  business,  trade  or  occupation  is 
or  may  be  restricted  or  prevented,  is  hereby  declared  to  be  against  public 
policy,  illegal  and  void. 

In  Alabama,  Illinois,  Mississippi,  Missouri,  New  Mexico,  Tennessee, 
pools,  trusts,  or  combinations  to  regulate  or  control  prices  of  products, 
goods,  wares  or  merchandise  are  prohibited. 

The  Louisiana  statute  declares  illegal  all  trusts  and  combinations, 
which  restrain  trade  or  commerce.  The  South  Dakota  statute  pro- 
hibits all  trusts  and  combinations,  "  tending  to  prevent  a  free,  fair  and 
full  competition  in  the  production,  manufacture,  or  sale  of  any  article 

5  112 


STATUTORY    LEGISLATION  AGAINST  TRADE  COMBINATIONS.  395 

entrance  into  a  contract  or  combination  in  unreasonable 
restraint  of  trade.  That  such  contracts  and  agreements  are 
void,  independently  of  statute  and  at  the  common  taw,  — 
so  far,  at  least,  as  to  justify  the  courts  in  refusing  to  en- 

or  commodity  of  domestic  growth,  use  or  manufacture  "  or  to  advance 
the  price  of  the  same  beyond  the  reasonable  cost  of  production. 

The  Iowa  statute  declares  it  to  be  a  misdemeanor,  and  punishable  as 
such,  in  accordance  with  other  provisions  of  the  statute,  for  any  cor- 
poration, association,  partnership  or  individual  to  become  a  member  or 
party  to  any  trust,  agreement  or  contract,  to  regulate  the  price  of  any 
article  of  merchandise,  or  the  control  of  the  joint  business  by  the  issue 
of  trust  certificates,  and  the  statute  further  declares  that  the  purchaser 
from  such  illegal  combination  or  trust  of  any  article,  the  sale  of  which 
is  the  occasion  for  the  formation  of  the  trust  or  combination,  may 
plead  this  act  as  a  defense  to  the  suit  for  the  purchase  price;  and  that 
any  corporation,  entering  into  such  a  trust  or  combination,  thereby  for- 
feits its  charter  and  corporate  rights  and  franchises. 

The  Michigan  statute  declares  "  all  contracts,  agreements  understand- 
ings and  combinations  made,"  "the  purpose  or  object  or  intent  of  which 
shall  be  to  limit,  control,  or  in  any  manner  to  restrict  or  regulate  the 
amount  of  production  or  the  quantity  of  any  article  or  commodity  to  be 
raised  or  produced  by"  any  branch  of  business  or  labor,  "  or  to  enhance, 
control,  or  regulate  the  market  price  thereof,  or  in  any  manner  to  prevent 
or  restrict  free  competition  in  the  production  or  sale  of  any  such  article 
or  commodity,  shall  be  utterly  illegal  and  void,  and  every  such  contract," 
etc.,  "shall  constitute  a  criminal  conspiracy/'  and  punishable  as  such 
in  accordance  with  the  other  provisions  of  the  statute.  Any  corporation 
entering  into  and  remaining  in  such  a  trust  and  combination  shall  for- 
feit its  charter.  There  are  two  exceptions  to  the  operation  of  the 
statute  the  statute  does  not  apply  to,  first,  contracts  for  the  sale  of  the 
"good-will of  a  trade  or  business;  "  or  secondly,  to"  agricultural  prod- 
ucts or  live-stock  while  in  the  hands  of  the  producer  or  raiser,  nor  to  the 
services  of  laborers,  or  artisans  who  are  formed  into  societies  or  organi- 
zations for  the  benefit  and  protection  of  their  members."  A  Kansas 
statute  prohibits  combinations  to  prevent  competition  among  persons  in 
buying  and  selling  live-stock. 

I  believe  a  careful  reading  of  all  of  these  statutes  in  the  original  will 
confirm  the  statement  of  the  text,  that  the  common  law  has  been  changed 
in  every  case  in  regard  to  the  actionable  wrong  committed  by  the  crea- 
tion of  or  entrance  into  a  trust  or  combination  in  restraint  of  trade, 
and  that  most  of  the  statutes  have  prohibited  all  contracts  and  com- 
binations in  restraint  of  trade  and  competition,  whether  their  restraint 
was  reasonable  or  unreasonable. 

It  may  be  pertinent  to  add  that  the  author  does  not  profess  to  have 

§  112 


396  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

force  them  or  in  any  other  way  to  give  the  parties  to  them 
the  aid  of  judicial  process  in  protecting  and  enforcing  the 
rights  of  parties,  which  grow  out  of  such  contracts  and 
agreements — have  been  too  long  the  settled  rule  of  law,  to 
admit  of  any  serious  question  now.  And  the  power  of 
the  State  to  declare  such  contracts  unlawful  being  conceded 
it  is  completely  within  the  discretion  of  the  legislature  to 
determine  whether  such  unlawful  contracts  and  combina- 
tions shall  be  simply  ignored  by  the  courts,  or  the  parties 
to  them  be  subjected  to  criminal  or  civil  liabilities  for 
violating  the  law  in  undertaking  to  restrain  trade  and  stifle 
competition.  The  Texas  Anti-trust  law  was  held  by  an 
United  States  judge  to  be  unconstitutional  as  being  class 
legislation,  in  that  it  excepts  from  the  force  of  its  provisions 
the  combinations  of  producers  or  raisers  of  agricultural 
products  and  live  stock.1  And  it  would  seem  as  if  the  ex- 
ception would  justify  the  conclusion.  The  same  judge  pro- 
nounced the  law  unconstitutional  on  the  further  ground 
that  it  violated  the  Fourteenth  Amendment  of  the  Constitu- 
tion of  the  United  States,  in  that  it  denies  to  citizens  of  the 
United  States,  the  right  to  make  valid  contracts  with  respect 
to  their  business  and  property.2  But  the  constitutionality 
of  the  statute  has  been  sustained  by  the  Supreme  Court 
of  Texas ;  3  and  I  know  of  no  decision  of  a  court  of  last 
resort,  either  Federal  or  State,  in  which  an  anti-trust 
law  was  held  to  be  unconstitutional,  because  it  invaded 
the  liberty  of  contract  in  prohibiting  the  individual  from 
entering  into  combinations  to  restrict  trade  or  create  virtual 
monopolies. 

But  these  statutes  have,  as  already  stated,  made  another 

kept  up  with  all  the  changes  in  the  anti-trust  legislation  of  the  States,  or 
to  give  here  an  exhaustive  analysis  of  them  all.  He  is  concerned  only  in 
the  full  illustration  of  the  principles  which  underlie  them  all. 

1  In  re  Grice,  79  Fed.  627. 

2  In  re  Grice,  79  Fed.  627. 

3  Queen  Ins.  Co.  v.  State,  86  Tex.  250. 

§  112 


STATUTORY  LEGISLATION  AGAINST  TRADE  COMBINATIONS.  397 

equally  important  change  in  the  common  law.  As  it  has 
been  very  fully  explained  in  preceding  sections,1  at  common 
law,  as  it  came  to  us  from  England  at  the  time  of  the  Rev- 
olution, only  those  contracts  were  declared  to  be  void  as 
against  public  policy  which  produced  an  unreasonable  re- 
straint upon  trade  and  competition.  The  mere  fact,  that 
the  contract  was  one  in  restraint  of  trade,  did  not  make  it 
void  at  common  law.  The  scope  and  purpose  of  the  con- 
tract or  combination  in  restraint  of  trade  had  to  be  unrea- 
sonable and  injurious  to  the  public  welfare,  before  the  courts 
would  pronounce  it  void  as  against  public  policy.  But 
many  of  these  modern  statutes,  if  not  most  of  them,  in- 
cluding those  of  the  United  States  and  of  New  York,  go 
further  and  declare  all  such  contracts  and  combinations 
unlawful  and  all  persons  amenable  to  the  punitory  provi- 
sions of  the  respective  statutes,  who  enter  into  such 
contracts  and  combinations,  which  have  either  the  effect 
or  purpose  of  restraining  trade,  restricting  competition  and 
creating  monopolies  in  trade.  Some  of  them,  like  the 
Michigan  statute,  expressly  exclude  contracts  for  the  sale 
of  the  good-will  of  a  business.  In  a  recent  case,  it  has  been 
held  in  New  York  that  a  contract  in  connection  with  the 
sale  of  the  good-will  of  the  business,  that  the  seller  will  not 
compete  with  the  buyer  within  a  specified  area,  did  not  vio- 
late the  anti-trust  law.2  On  the  other  hand,  in  most  of  these 
statutes,  there  is  no  such  exception  .8  The  statutes  have  been 
assailed  on  the  ground  of  unconstitutionality,  because  they 
worked  an  unlawful  infringement  of  the  liberty  of  contract 
in  prohibiting  contracts  and  combinations  in  restraint  of 
trade,  which  were  reasonable,  and  hence  could  not  be  pro- 

1  §§  109,  110. 

2  Brett  v.  Ebel,  61  N.  Y.  S.  573;  29  App.  Div.  256.     Bat  see  contra, 
Harding  v.  Am.  Glucose  Co.  (111.  1899),  55  N.  B.  577, 

3  There  have  been  expressions  of  opinion  by  legislators  that  they  want 
to  prohibit  just  such  transactions,  In  order  to  prevent  the  growth,  by  the 
purchases  of  the  good-will  of  rivals,  of  huge  virtual  monopolies. 

§  H2 


398  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

nounced  injurious  to  the  public  welfare.  Several  of  the 
cases,  in  which  this  point  was  raised,  deserve  more  than  a 
passing  consideration. 

The  first  case,  to  which  attention  is  called,  is  one  arising 
under  the  New  York  statute.1  The  defendant  was  a  mem- 
ber of  an  association  of  retail  coal  dealers  in  the  town  of 
Lockport,  N.  Y.  The  association  was  formed  for  the  pur- 
pose of  regulating  the  retail  price  of  coal,  at  a  figure  which 
assured  the  dealers  a  reasonable  profit,  and  of  prevent- 
ing under-bidding  of  each  others  by  rival  dealers.  The 
by-laws  of  the  association  prohibited  any  member  from 
selling  at  any  other  price  than  that  which  was  fixed  by  the 
vote  of  five-sixths  of  the  members,  and  provided  that  at  no 
time  should  the  price  be  more  than  $1.00  per  ton  in  advance 
of  the  wholesale  price,  unless  a  higher  advance  be  ordered  by 
the  unanimous  vote  of  the  members.  In  holding  the  law  to 
be  constitutional,  and  the  association  an  illegal  conspiracy, 
the  court  said  :  "  The  defendants  gave  evidence  tending  to 
show  (and  of  this  there  was  no  contradiction)  that  before 
and  at  the  time  of  the  organization  of  the  exchange  the 
excessive  competition  between  the  dealers  in  coal  in  Lock- 
port  had  reduced  the  price  below  the  actual  cost  of  the  coal 
and  the  expense  of  handling,  and  that  the  business  was 
carried  on  at  a  loss.  It  was  not  shown  that  the  prices  of 
coal,  fixed  from  time  to  time  by  the  exchange,  were  exces- 
sive or  oppressive,  or  were  more  than  sufficient  to  afford  a 
fair  remuneration  to  the  dealers.  The  trial  judge  submitted 
the  case  to  the  jury  upon  the  proposition  that,  if  the  defend- 
ants entered  into  the  organization  agreement  for  the  pur- 
pose of  controlling  the  price  of  coal  and  of  managing  the 
business  of  the  sale  of  coal,  so  as  to  prevent  competition 
in  price  between  the  members  of  the  exchange,  the  agree- 
ment was  illegal ;  and  that  if  the  jury  found  that  this  was 
their  intention,  and  that  the  price  of  coal  was  raised  in 

i  People  ».  Sheldon,  139  N.  Y.  251. 
§  112 


STATUTORY  LEGISLATION  AGAINST  TRADE  COMBINATIONS.  399 

pursuance  of  the  agreement  to  effect  its  object,  the  crime 
of  conspiracy  was  established.  The  correctness  of  this 
proposition  is  the  main  question  in  the  case.  If  a  combina- 
tion between  independent  dealers,  to  prevent  competition 
between  themselves  in  the  sale  of  an  article  of  prime  neces- 
sity is,  in  the  contemplation  of  the  law,  an  act  inimical 
to  trade  or  commerce,  whatever  may  be  done  under  and  in 
pursuance  of  it,  and  although  the  object  of  the  combina- 
tion is  merely  the  due  protection  of  the  parties  to  it  against 
ruinous  rivalry,  and  no  attempt  is  made  to  charge  undue  or 
excessive  prices,  then  the  indictment  was  sustained  by 
proof.  On  the  other  hand,  if  the  validity  of  an  agreement, 
having  for  its  object  the  prevention  of  competition  between 
dealers  in  the  same  commodity,  depends  upon  what  may  be 
done  under  the  agreement,  and  it  is  to  be  adjudged  valid 
or  invalid  according  to  the  fact  whether  it  is  made  the 
means  for  raising  the  price  of  a  commodity  beyond  its 
normal  and  reasonable  value,  then  it  would  be  difficult  to 
sustain  this  conviction ;  for  it  affirmatively  appears 
that  the  price  fixed  for  coal  by  the  exchange  did  not 
exceed  what  would  afford  a  reasonable  profit  to  the 
dealers.  The  obtaining  by  dealers  of  a  fair  and  reasonable 
price  for  what  they  sell  does  not  seem  to  contravene  public 
policy,  or  to  work  an  injury  to  individuals.  On  the  con- 
trary, the  general  interests  are  promoted  by  activity  in 
trade,  which  cannot  permanently  exist  without  reasonable 
encouragement  to  those  engaged  in  it.  Producers,  con- 
sumers and  laborers  are  alike  benefited  by  healthful  con- 
ditions of  business." 

This  was  held  not  to  be  the  question. 

«*The  question  is,  was  the  agreement,  in  view  of  what 
might  have  been  done  under  it  and  the  fact  that  it  was  an 
agreement,  the  effect  of  which  was  to  prevent  competition 
among  the  coal  dealers,  one  upon  which  the  law  affixes  the 
brand  of  condemnation?  It  has  hitherto  been  an  accepted 
maxim  in  political  economy  that  competition  is  the  life  of 

§  112 


400  REGULATION   OF    TRADES    AND    OCCUPATIONS. 

trade.  The  courts  have  acted  upon  and  adopted  this 
maxim  in  passing  upon  the  validity  of  agreements,  the 
design  of  which  was  to  prevent  competition  in  trade,  and 
have  held  such  agreements  to  be  invalid.  *  *  * 

**  The  gravamen  of  the  offense  of  conspiracy  is  the  com- 
bination. Agreements  to  prevent  competition  in  trade  are 
in  contemplation  of  law  injurious  to  trade,  because  they 
are  liable  to  be  injuriously  used.  The  present  case  may 
be  used  as  an  illustration.  The  price  of  coal  now  fixed  by 
the  exchange  may  be  reasonable  in  view  of  the  interests 
both  of  dealers  and  consumers,  but  the  organization  may 
not  always  be  guided  by  the  principle  of  absolute  justice. 
There  are  some  limitations  in  the  constitution  of  the  ex- 
change, but  these  may  be  changed,  and  the  price  of  coal  may 
be  unreasonably  advanced.  It  is  manifest  that  the  exchange 
is  acting  in  sympathy  with  the  producers  and  shippers  of 
coal.  Some  of  the  shippers  were  present  when  the  plan  of 
organization  was  considered,  and  it  was  indicated  on  the 
trial  that  the  producers  had  a  similar  organization  between 
themselves.  If  agreements  and  combinations  to  prevent 
competition  in  prices  are  or  may  be  hurtful  to  trade,  the  only 
sure  remedy  is  to  prohibit  all  agreements  of  that  character." 

The  charge  to  the  jury  was  sustained  and  the  verdict 
affirmed.  The  next  case  is  from  the  Supreme  Court 
of  the  United  States,1  arising  under  the  United  States 
Anti -trust  law.  An  association  had  been  formed  be- 
tween certain  competing  railroads  "  for  the  purpose 
of  mutual  protection  by  establishing  and  maintaining 
reasonable  rates,  rules,  and  regulations  on  all  freight 
traffic."  The  United  States  Supreme  Court  held  this  to  be 
an  unlawful  combination  in  restraint  of  trade,  under  the 
national  anti-trust  law  of  1890.  In  delivering  the  opinion 
of  the  court,  Mr.  Justice  Peckham  said  in  part:  — 

*'  It  is  now  with  much  amplification  of  argument  urged 

1  United  States  v.  Trans-Missouri  Freight  Association,  166  U.  S.  290. 
§  112 


STATUTORY  LEGISLATION  AGAINST  TRADE  COMBINATIONS.  401 

that  the  statute  in  declaring  illegal  every  combination  in 
the  form  of  trust  or  otherwise,  or  conspiracy  in  restraint 
of  trade  or  commerce,  does  not  mean  what  the  language 
used  therein  plainly  imports,  but  that  it  only  means  to  de- 
clare illegal  any  such  contract  which  is  in  unreasonable 
restraint  of  trade,  while  leaving  all  others  unaffected  by  the 
provisions  of  the  act;  that  the  common  law  meaning  of 
the  term  «  contract  in  restraint  of  trade,'  includes  only  such 
contracts  as  are  in  unreasonable  restraint  of  trade,  and 
when  that  term  is  used  in  the  Federal  statute,  it  is  not  in- 
tended to  include  all  contracts  in  restraint  of  trade,  but 
only  those  which  are  in  unreasonable  restraint  thereof. 

"  The  term  is  not  of  such  limited  signification.  Contracts 
in  restraint  of  trade  have  been  known  and  spoken  of  for 
hundreds  of  years  both  in  England  and  in  this  country,  and 
the  term  includes  all  kinds  of  those  contracts  which  in  fact 
restrain  or  may  restrain  trade.  Some  of  such  contracts 
have  been  held  void  and  unenforceable  in  the  courts  by 
reason  of  their  restraint  being  unreasonable,  while  others 
have  been  held  valid  because  they  were  not  of  that  nature. 
A  contract  may  be  in  restraint  of  trade  and  still  be  valid  at 
common  law.  Although  valid,  it  is  nevertheless  a  contract 
in  restraint  of  trade,  and  would  be  so  described  either  at 
common  law  or  elsewhere.  By  the  simple  use  of  the  term 
*  contract  in  restraint  of  trade,'  all  contracts  of  that  nature, 
whether  valid  or  otherwise,  would  be  included,  and  not 
alone  that  kind  of  contract  which  was  invalid  and  unen- 
forceable as  being  in  unreasonable  restraint  of  trade. 
When,  therefore,  the  body  of  an  act  pronounces  as  illegal 
every  contract  or  combination  in  restraint  of  trade  or  com- 
merce among  the  several  States,  etc.,  the  plain  and  ordinary 
meaning  of  such  language  is  not  limited  to  that  kind  of 
contract  alone,  which  is  in  unreasonable  restraint  of  trade, 
but  all  contracts  are  included  in  such  language,  and  no  ex- 
ception or  limitation  can  be  added  without  placing  in  the  act 
that  which  has  been  omitted  by  Congress.  *  *  * 

26  §  112 


402  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

««  The  arguments  which  have  been  addressed  to  us  against 
the  inclusion  of  all  contracts  in  restraint  of  trade,  as  pro- 
vided for  by  the  language  of  the  act,  have  been  based  upon 
the  alleged  presumption  that  Congress,  notwithstanding 
the  language  of  the  act,  could  not  have  intended  to  em- 
brace all  contracts,  but  only  such  contracts  as  were  in  un- 
reasonable restraint  of  trade.  Under  these  circumstances 
we  are,  therefore,  asked  to  hold  that  the  act  of  Congress 
excepts  contracts  which  are  not  in  unreasonable  restraint  of 
trade,  and  which  only  keep  rates  up  to  a  reasonable  price, 
notwithstanding  the  language  of  the  act  makes  no  such  excep- 
tion. In  other  words,  we  are  asked  to  read  into  the  act  by 
way  of  judicial  legislation  an  exception  that  is  not  placed 
there  by  the  law-making  branch  of  the  government,  and  this 
is  to  be  done  upon  the  theory  that  the  impolicy  of  such  legis- 
lation is  so  clear  that  it  cannot  be  supposed  that  Congress 
intended  the  natural  import  of  the  language  it  used.  This 
we  cannot  and  ought  not  to  do.  That  impolicy  is  not  so 
clear,  nor  are  the  reasons  for  the  exception  so  potent,  as 
to  permit  us  to  interpolate  an  exception  into  the  language 
of  the  act,  and  to  thus  materially  alter  its  meaning  and 
effect.  It  may  be  that  the  policy  evidenced  by  the  passage 
of  the  act  itself  will,  if  carried  out,  result  in  disaster  to 
the  roads,  and  in  a  failure  to  secure  the  advantages  sought 
from  such  legislation.  Whether  that  will  be  the  result 
or  not,  we  do  not  know  and  cannot  predict. 

"These  considerations  are,  however,  not  for  us.  If  the 
act  ought  to  read  as  contended  for  by  defendants,  Con- 
gress is  the  body  to  amend  it  and  not  this  court,  by  a 
process  of  judicial  legislation,  wholly  unjustifiable.  Large 
numbers  do  not  agree  that  the  view  taken  by  defendants  is 
sound  or  true  in  substance,  and  Congress  may  and  very 
probably  did  share  in  that  belief  in  passing  the  act.  The 
public  policy  of  the  government  is  to  be  found  in  its 
statutes,  and  when  they  have  not  directly  spoken,  then  in 
the  decisions  of  the  courts  and  the  constant  practice  of 
§  112 


STATUTORY  LEGISLATION  AGAINST  TRADE  COMBINATIONS.  403 

the  government  officials ;  but  when  the  lawmaking  power 
speaks  upon  a  particular  subject,  over  which  it  has  consti- 
tutional power  to  legislate,  public  policy  in  such  a  case  is 
what  the  statute  enacts.  If  the  law  prohibit  any  contract 
or  combination  in  restraint  of  trade  or  commerce,  a  con- 
tract or  combination  made  in  violation  of  such  law  is  void 
whatever  may  have  been  theretofore  decided  by  the  courts 
to  have  been  the  public  policy  of  the  country  on  that 
subject." 

In  the  courts  below,  in  this  Freight-Association  case,  the 
association  was  held  not  to  have  violated  the  Anti-Trust  law 
in  that  the  purpose  of  the  organization  was  shown  by  the 
terms  of  agreement  as  well  as  by  the  reasonableness  of  the 
rates  of  freight  agreed  upon,  to  be  the  prevention  of 
freight-rate  wars  among  themselves,  and  not  the  exaction 
of  extortionate  rates.  These  courts  held  thnt  the  act  of 
Congress  was  designed  to  prevent  and  punish  the  making 
of  those  contracts  and  combinations  in  restraint  of  trade, 
which  were  held  by  the  courts,  independently  of  and  prior 
to  the  enactment  of  the  statute,  to  be  against  public  policy, 
because  of  their  unreasonableness. 

"  The  test  of  the  validity  of  such  contracts  or  combina- 
tions is  not  the  existence  of  restriction  upon  competition 
imposed  thereby,  but  the  reasonableness  of  that  restriction 
under  the  facts  and  circumstances  of  each  particular  case. 
Public  welfare  is  first  considered,  and,  if  the  contract  or 
combination  appears  to  have  been  made  for  a  just  and  hon- 
est purpose,  and  the  restraint  upon  trade  is  not  specially 
injurious  to  the  public,  and  is  not  greater  than  the  protec- 
tion of  the  legitimate  interest  of  the  party  in  whose  favor 
the  restraint  is  imposed  reasonably  requires,  the  contract 
or  combination  is  not  illegal."  1 

1  United  States  ».  Trans-Missouri  Freight  Assn.,  58  F.  58;  7  C.  C.  A. 
15.  A  similar  agreement  between  railroads  was  sustained  by  the 
Supreme  Court  of  New  Hampshire,  in  which  the  court  said  in  part:  — 

"  For  the  lessons  of  experience,  as  well  as  the  deductions  of  reason, 

§  112 


404  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

The  same  question  was  raised  before  the  Supreme  Court 
of  the  United  States  in  the  Joint  Traffic  Association,  the 
purpose  of  which  association  was  stated  in  the  preamble  of 
the  articles  of  agreement  to  be  "  to  aid  in  fulfilling  the  pur- 
pose of  the  interstate  commerce  act,  to  co-operate  with 
each  other  and  adjacent  transportation  associations,  to 
establish  and  maintain  reasonable  and  just  rates,  fares,  rules 
and  regulations  on  State  and  interstate  traffic,  to  prevent 
unjust  discrimination  and  to  secure  the  reduction  and  con- 
centration of  agencies  and  the  introduction  of  economies  in 
the  conduct  of  the  freight  and  passenger  service." 

The  court,  speaking  through  Mr.  Justice  Peckham, 
affirmed  the  judgment  of  the  court  in  the  case  of  the 
Trans-Missouri  Freight  Association,  and  declared  the  Joint 
Traffic  Association  to  be,  under  the  act  of  Congress  of 
1890,  an  unlawful  combination  in  restraint  of  trade,  al- 
though it  was  conceded  that  the  purpose  of  the  association 
was  not  to  practice  extortion  upon  the  public,  but  to  pro- 
tect the  railroads  composing  the  association  from  ruinous 
competition  among  themselves.1 

amply  demonstrate  that  the  public  interest  is  not  subserved  by  competi- 
tion which  reduces  the  rates  of  transportation  below  the  standard  of  fair 
compensation ;  and  the  theory  which  formerly  obtained  that  the  public  is 
benefited  by  unrestricted  competition  between  railroads  has  been  so 
emphatically  disproved  by  the  results  which  have  generally  followed  its 
adoption  in  practice  that  the  hope  of  any  permanent  relief  from  exces- 
sive rates  through  the  competition  of  a  parallel  or  rival  road  may,  as  a 
rule,  be  justly  characterized  as  illusory  and  fallacious.  Upon  authority, 
also,  arrangements  and  contracts  between  competing  railroads,  by  which 
unrestrained  competition  is  prevented,  do  not  contravene  public  policy." 
Manchester  &  L.  R.  Co.  v.  Concord  R.  R.  Co.,  66  N.  H.  100.  See,  also, 
Herriman  v.  Menzies,  115  Cal.  16,  in  which  an  association  of  stevedores 
was  sustained  as  not  unduly  restricting  the  business  of  stevedoring,  in 
contravention  of  public  policy,  although  it  was  formed  to  regulate  the 
charges,  and  prohibit  the  members  from  doing  work  at  a  lower  figure. 

1  United  States  v.  Joint  Traffic  Association,  171  U.  S.  505.  In  this 
case,  Mr.  Justice  Peckham  said,  inter  alia:  — 

"  The  question  really  before  us  is  whether  Congress,  in  the  exercise 
of  its  right  to  regulate  commerce  among  the  several  States,  or  other- 
wise, has  the  power  to  prohibit,  as  in  restraint  of  interstate  commerce, 
§  112 


STATUTORY  LEGISLATION  AGAINST  TRADE  COMBINATIONS.  405 

The  position,  taken  by  the  United  States  Supreme 
Court  and  the  New  York  Court  of  Appeals,  has  been  in- 
dorsed and  taken  by  the  other  courts  of  the  country,  in 
construing  the  operation  and  scope  of  the  anti-trust  laws, 
in  a  number  of  cases.  The  Kansas  City  Live-stock  Asso- 
ciation, formed  to  restrain  but  not  to  stifle  competition,  was 
held  to  be  unlawful.1 

In  New  York,  it  was  held  that  in  order  that  the  combina- 
tion may  come  within  the  prohibition  of  the  anti-trust  laws, 

a  contract  or  combination  between  competing  railroad  corporations  en- 
tered into  and  formed  for  the  purpose  of  establishing  and  maintaining 
interstate  rates  and  fares  for  the  transportation  of  freight  and  passengers 
on  any  of  the  railroads  which  are  parties  to  the  contract  or  combination, 
even  though  the  rates  and  fares  thus  established  are  reasonable.  Such 
an  agreement  directly  affects  the  cost  of  transportation  of  commodities, 
and  commerce  consists,  among  other  things,  of  the  transportation  of 
commodities,  and  if  such  transportation  be  between  States  it  is  inter- 
state commerce.  The  agreement  affects  interstate  commerce  by  de- 
stroying competition  and  by  maintaining  rates  above  what  competition 
might  produce. 

"If  it  did  not  do  that,  its  existence  would  be  useless,  and  it  would 
soon  be  rescinded  or  abandoned.  Its  acknowledged  purpose  is  to  main- 
tain rates,  and  if  executed,  it  does  so.  It  must  be  remembered,  how- 
ever, that  the  act  does  not  prohibit  any  railroad  company  from  charging 
reasonable  rates.  If  in  the  absence  of  any  contract  or  combination 
among  the  railroad  companies  the  rates  and  fares  would  be  less  than 
they  are  under  such  contract  or  combination,  that  is  not  by  reason  of 
any  provision  of  the  act  which  itself  lowers  rates,  but  only  because 
the  railroad  companies  would,  as  it  is  urged,  voluntarily  and  at  once 
inaugurate  a  war  of  competition  among  themselves,  and  thereby  them- 
selves reduce  their  rates  and  fares. 

"  Has  not  Congress  with  regard  to  interstate  commerce  and  in  the 
course  of  regulating  it,  in  the  case  of  railroad  corporations,  the  power 
to  say  that  no  contract  or  combination  shall  be  legal  which  shall  restrain 
trade  and  commerce  by  shutting  out  the  operation  of  the  general  law  of 
competition?  We  think  it  has." 

In  this  case,  as  in  the  case  of  the  Trans -Missouri  Freight  Associa- 
tion the  opinion  was  delivered  by  a  divided  court;  in  the  Trans-Missouri 
case,  four  justices  dissenting,  and  in  the  Joint-Traffic  case,  three  jus- 
tices, dissenting  and  one  taking  no  part  in  the  decision.  In  both  cases, 
the  opinion  was  concurred  in  by  only  five  justices,  a  bare  majority  of  the 
court. 

1  Greer  v.  Payne,  4  Kans.  App.  153. 

§  112 


406  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

the  commodity  dealt  in  by  the  combination  need  not  be  an 
article  of  necessity.1  It  has  been  held  in  Nebraska  that  a 
laundry  is  not  a  manufacturing  establishment  so  as  to  bring 
a  combination  of  proprietors  of  laundries  within  the  con- 
demnation of  the  anti-trust  law  of  that  State,  which  pro- 
hibits combinations  of  manufacturers  and  dealers.2  It  has 
been  held  in  Indiana  on  the  other  hand,  that  a  combination 
of  gas  companies,  to  fix  and  maintain  the  price  of  gas, 
violates  the  anti-trust  law.3  It  has  been  held  in  a  number 
of  States,  that  all  contracts  and  agreements  between  fire 
insurance  companies  for  the  establishment  of  uniform  rates 
of  premium,  are  in  violation  of  these  anti-trust  statutes.4 

The  courts  have  gone  still  further  in  the  application  of 
these  statutes,  and  have  held  them  to  apply  to  the  forma- 
tion of  a  corporation  with  the  avowed  purpose  of  control- 
ling the  trade  and  the  price  of  a  commodity  of  general  use. 
The  mere  purpose  to  create  a  corporation,  large  enough  and 
powerful  enough  to  drive  all  other  competitors  out  of  the 
business,  brings  the  parties  to  the  combination  within  the 
comdemnation  of  the  law.5 

But  where  there  is  no  such  purpose  to  create  a 
monopoly,  but  only  the  lawful  purpose  of  putting 
an  end  to  litigation  of  rival  corporations  over  their 

1  Cummings  o.  Union  Bluestone  Co.,  15  App.  Div.  602;  44  N.  Y.  S. 
787;  People  0.  Duke,  44  N.  Y.  S.  336;  11  N.  Y.  Cr.  R.  472;  19  Misc.  Rep. 
292. 

2  Downing  ».  Lewis  (Neb.),  76  N.  W.  900. 

3  State  v.  Portland  Nat.  Gas  &  Oil  Co.  (Ind.  »99),  53  N.  E.  1089. 

*  Beechley  v.  Mulville,  102  Iowa,  602;  State  ex  rel.  Crow  v.  Fireman's 
Fond  Assn.  (Mo.  '99),  52  S.  W.  595;  State  v.  Phipps,  50  Kans.  609;  Am. 
Fire  Ins.  Co.  v.  State,  75  Miss.  24.  But  see  contra,  TEtna  Ins.  Co.  v. 
Commonwealth  (Ky.  '99),  51  S.  W.  624;  Queen  Ins.  Co.t>.  State,  86  Tex. 
250. 

5  People  v.  Milk  Exchange,  145  N.  Y.  267;  Ford  v.  Chicago  Milk  Ship- 
pers Assn.,  155  111.  166;  Harding  v.  American  Glucose  Co.  (Ill,  '99),  65 
N.  E.  577;  Merz  Capsule  Co.  v.  U.  S.  Capsule  Co.  (C.  C.)f  67  Fed.  414 
(same  as  to  the  executory  agreement  to  combine) ;  State  v.  Buckeye  Pipe 
Line  Co.  (Ohio,  1900),  56  N.  E.  464;  State  v.  Solar  Refining  Co.  (Ohio), 
66  N.  E.  464;  State  v.  Standard  Oil  Co.  (Ohio),  56  N.  E.  464. 
§  112 


STATUTORY  LEGISLATION  AGAINST  TRADE  COMBINATIONS.  407 

conflicting  interests,  the  consolidation  of  the  corpora- 
tions is  not  illegal,  as  tending  to  create  a  monopoly,  partic- 
ularly, when  the  corporations  hold  no  public  franchise,  like 
a  railroad,  and  their  output  comprises  but  a  small  portion  of 
the  same  product  in  the  country.1  It  has  been  also  held  in 
Illinois,  that  a  linseed  oil  company  does  not  violate  the  anti- 
trust law,  merely  by  buying  up  a  great  many  oil  mills  and 
plants,  and  developing  their  business  into  large  propor- 
tions.2 

The  same  conclusion  was  reached  in  a  Rhode  Island  case, 
wherein  three  of  four  companies,  who  were  engaged  in  the 
manufacture  of  oleomargarine,  were  consolidated  as  a  cor- 
poration, with  the  object  of  limiting  or  stopping  ruinous 
competition ;  and  the  agreement  inhibited  the  parties  thereto 
from  engaging  separately  in  the  business  for  five  years.8 

A  careful  study  of  these  statutes  against  combinations  in 
restraint  of  trade,  and  of  the  decisions  of  the  courts  in  con- 
struing and  enforcing  them,  reveals  an  unmistakable, 
and  general  and  popular  condemnation  of  the  strong  and 
apparently  irresistible  tendency  to  the  concentration  of 
capital,  and  of  the  gigantic  economic  power  which  such  con- 
centration creates.  Whether  a  way  may  be  discovered  later 
to  make  effective  this  popular  opposition  to  the  creation  of 
enormous  virtual  monopolies,  or  the  anti-trust  statutes,  will, 
like  the  old  English  statutes  against  forestalling  and  re- 
gretting, ultimately  fall  into  innocuous  desuetude,  cannot  be 
foretold.  If  they  prove  to  be  effective  in  restraining  the 
growth  and  enlargement  of  combinations  of  capital,  they 
must  be  so  reconstructed  as  to  remove  their  present  antag- 
onism to  economic  and  industrial  necessities;  or  these  neces- 
sities themselves  must  be  changed  by  new  inventions  and 
the  discovery  of  new  methods  of  manufacture  of  business, 
whereby  it  becomes  possible  for  the  small  dealer  and  man- 

1  Meredith  ».  New  Jersey  Zinc  &  Iron  Co.,  56  N.  J.  Eq.  211. 

2  Coquart  v.  National  Linseed  Oil  Co.,  171  111.  480. 
8  Oakdale  Mfg.  Co.  v.  Garst,  18  R.  I.  484. 

§  112 


408  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

ufacturer  to  sell  his  goods  and  products  to  the  consumer  as 
cheaply  as  can  the  large  dealer  and  manufacturer.  In  no 
other  way  can  the  popular  desire  for  the  preservation  of  the 
independence  of  the  small  tradesman  and  artisan  be  real- 
ized. This  popular  desire  seems  to  me  to  explain  the  real 
force  which  is  back  of  the  anti-trust  legislation,  and  with- 
out whose  support  the  socialistic  propaganda  could  not  get 
a  hearing.  Mr.  Justice  Peckham,  in  the  case  of  the  United 
States  v.  Trans-Missouri  Freight  Association,1  expressed 
this  idea  very  forcibly  when  he  says :  — 

'*  It  is  true  the  results  of  trusts,  or  combinations  of 
that  nature,  may  be  different  in  different  kinds  of  cor- 
porations, and  yet  they  all  have  an  essential  similarity,  and 
have  been  induced  by  motives  of  individual  or  corporate 
aggrandizement  as  against  the  public  interest.  In  business 
or  trading  combinations  they  may  even  temporarily,  or 
perhaps  permanently,  reduce  the  price  of  the  article  traded 
in  or  manufactured,  by  reducing  the  expense  inseparable 
from  the  running  of  many  different  companies  for  the  same 
purpose.  Trade  or  commerce  under  those  circumstances 
may  nevertheless  be  badly  and  unfortunately  restrained  by 
driving  out  of  business  the  small  dealers  and  worthy  men 
whose  lives  have  been  spent  therein,  and  who  might  be 
unable  to  readjust  themselves  to  their  altered  surroundings. 
Mere  reduction  in  the  price  of  the  commodity  dealt  in 
might  be  dearly  paid  for  by  the  ruin  of  such  a  class  and  the 
absorption  of  control  over  one  commodity  by  an  all- 
powerful  combination  of  capital.  In  any  great  and  ex- 
tended change  in  the  manner  or  method  of  doing  business 
it  seems  to  be  an  inevitable  necessity  that  distress,  and, 
perhaps,  ruin  shall  be  its  accompaniment  in  regard  to  some 
of  those  who  were  engaged  in  the  old  methods.  A  change 
from  stage-coaches  and  canal-boats  to  railroads  threw  at 
once  a  large  number  of  men  out  of  employment;  changes 

i  166  U.  S.  290. 

§  112 


STATUTORY  LEGISLATION  AGAINST  TRADE  COMBINATIONS.  409 

from  hand  labor  to  that  of  machinery,  and  from  operating 
machinery  by  hand  to  the  application  of  steam  for  such 
purpose,  leave  behind  them  for  the  time,  a  number  of 
men  who  must  seek  other  avenues  of  livelihood.  These  are 
misfortunes  which  seem  to  be  the  necessary  accompaniment 
of  all  great  industrial  changes.  It  takes  time  to  effect  a 
readjustment  of  industrial  life,  so  that  those  who  are  thrown 
out  of  their  old  employment  by  reason  of  such  changes  as 
we  have  spoken  of  may  find  opportunities  for  labor  in 
other  departments  than  those  to  which  they  have  been 
accustomed.  It  is  a  misfortune,  but  yet  in  such  cases  it 
seems  to  be  the  inevitable  accompaniment  of  change  and 
improvement. 

"  It  is  wholly  different,  however,  when  such  changes  are 
effected  by  combinations  of  capital,  whose  purpose  in  com- 
bining is  to  control  the  production  or  manufacture  of  any 
particular  article  in  the  market,  and  by  such  control  dictate 
the  price  at  which  the  article  shall  be  sold,  the  effect  being 
to  drive  out  of  business  all  the  small  dealers  in  the  com- 
modity and  to  render  the  public  subject  to  the  decision  of 
the  combination  as  to  what  price  shall  be  paid  for  the 
article.  In  this  light  it  is  not  material  that  the  price  of  an 
article  may  be  lowered.  It  is  in  the  power  of  the  combina- 
tion to  raise  it,  and  the  result  in  any  event  is  unfortunate 
for  the  country  by  depriving  it  of  the  services  of  a  large 
number  of  small  but  independent  dealers  who  were  familiar 
with  the  business  and  who  had  spent  their  lives  in  it,  and 
who  supported  themselves  and  their  families  from  the  small 
profits  realized  therein.  Whether  they  be  able  to  find  other 
avenues  to  earn  their  livelihood  is  not  so  material,  because 
it  is  not  for  the  real  prosperity  of  any  country  that  such 
changes  should  occur  which  result  in  transferring  an  inde- 
pendent business  man,  the  head  of  his  establishment,  small 
though  it  may  be,  into  a  mere  servant  or  agent  of  a  corpora- 
tion for  selling  the  commodities  which  he  once  manufactured 
or  dealt  in,  having  no  voice  in  shaping  the  business  policy 

§  112 


410  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

of   the  company  and    bound    to   obey    orders   issued   by 
others." 

§  113.  Different  phases  of  the  application  of  anti- 
trust statutes —  Factor's  system —  Control  of  patents  — 
Combinations  against  dishonest  debtors  —  Agreements 
to  sell  only  to  regular  dealers  —  Combinations  of  em- 
ployers to  resist  combinations  of  employees  —  Depart- 
ment stores.  —  One  of  the  most  interesting  attempts  to 
regulate  and  control  the  price  of  products  is  what  is  known 
in  trade  as  the  factor's  system.  The  manufacturer,  who 
controls  a  large  part  of  the  country's  output  of  the  com- 
modity, enters  into  an  agreement  with  the  jobbers  through- 
out the  country,  under  which  each  jobber  becomes  a  factor 
or  agent  of  the  manufacturer  for  the  sale  of  the  goods  in 
question,  the  goods  remaining  after  shipment  the  property 
of  the  manufacturer,  and  subject  to  recall  by  him,  while 
the  jobber  assumes  all  risks  in  regard  to  the  safe  custody 
of  the  goods.  The  jobber  agrees  to  sell  the  goods  at  the 
prices  fixed  by  the  manufacturer  from  time  to  time,  and 
not  to  sell  similar  goods  manufactured  by  any  other  com- 
peting concern.  If  he  fulfills  his  agreement  in  every 
particular,  he  receives  a  rebate  on  the  price  of  the  goods, 
which  assures  him  a  fair  profit  for  handling  the  goods,  and 
protects  him  against  the  under-cutting  of  prices  by  com- 
peting jobbers.  The  sugar  and  tobacco  trusts  inaugu- 
rated the  system  at  the  urgent  request  of  the  jobbers, 
throughout  the  country.  This  brief  statement  of  the 
factor's  contract,  apart  from  the  motive  of  its  general  exe- 
cution between  the  manufacturer  and  the  jobbers,  discloses 
the  ordinary  legal  relation  of  principal  and  factor,  having  no 
element  which  was  unknown  to  such  contracts  at  common 
law  and  prior  to  the  enactment  of  the  anti-trust  laws.  The 
motive  was  undoubtedly  the  maintenance  of  uniform  prices 
throughout  the  country,  and  the  protection  of  the  jobber 
from  ruinous  competition.  No  proof  has  ever  been  made  that 
§  113 


APPLICATION    OF   ANTI-TRUST   STATUTES.  411 

the  trusts  intended  to,  or  did  charge  extortionate  prices ; 
but  they  did  certainly  intend  by  that  system  to  control  the 
trade  throughout  the  country,  and  drive  the  small  manu- 
facturer out  of  business. 

In  principle,  this  combination  differs  in  nothing  from  the 
railway  freight  associations,  and  the  associations  of  coal 
and  milk  dealers,  which  have  been  declared  to  come  within 
the  prohibitive  provisions  of  the  anti-trust  laws.1  And  this 
was  the  conclusion  of  the  New  York  courts  in  regard  to 
the  tobacco  trust's  factor's  contract.2  But  a  contrary 
conclusion  has  been  reached  by  the  Texas  Supreme 
Court  in  a  case,  in  which  a  manufacturer  of  windmills  had 
granted  one  firm  the  exclusive  right  within  a  certain  terri- 
tory to  sell  his  windmills,  on  a  factor's  contract,  in  which 
it  was  stipulated  that  the  mills  were  to  remain  until  sold 
the  property  of  the  manufacturer,  and  the  factor  was  not  to 
sell  mills  manufactured  by  any  one  else.  The  contract  was 
held  to  be  lawful,  and  not  to  fall  within  the  provisions  of 
the  anti-trust  law  of  Texas;  for  the  reason,  inter  alia,  that 
the  statute  did  not  apply  to  contracts  between  principal  and 
agent.8  In  a  still  more  recent  case,  the  Texas  courts  have 
sustained  the  contract  of  a  carriage  manufacturer,  which 
granted  to  a  Texas  dealer  the  exclusive  right  to  sell  these 
carriages  upon  condition  that  he  sold  no  others.4 

Somewhat  similar  to  these  factor's  contracts,  in  restrict- 
ing competition,  is  the  agreement  of  railroads  and  express 

1  See  ante,  §  112. 

2  People  v.  Duke,  44  N.  Y.  S.  336;  11  N.  Y.  Or.  B.  472;  19  Misc.  Rep. 
292.    In  a  recent  case,  it  has  been  held  in  New  York,  that  the  contract  of 
a  manufacturer  to  give  his  customers  a  rebate,  if  they  do  not  sell  his 
goods  below  the  price  which  the  manufacturer  has  fixed  from  time  to 
time,  did  not  violate  any  provision  of  the  New  York  anti -trust  law. 
Walsh  v.  Dwight,  40  App.  Div.  N.  Y.  513;  58  N.  Y.  S.  91. 

8  Welch  t?.  Phelps  &  Bigelow  Windmill  Co.,  89  Tex.  653.  And  see,  to 
same  effect,  In  re  Green,  52  Fed.  104;  In  re  Corning,  51  F.  205;  United 
States  v.  Greenhut,  61  F.  205;  Dueber  Watch  Case  Mfg.  Co.  v.  E. 
Howard  Watch  and  Clock  Co.,  14  C.  C.  A.  14;  66  F.  637. 

4  Columbia  Carriage  Co.  t?.  Hatch  (Tex.  Civ.  App.),  47  S.  W.  288. 

§  113 


412  REGULATION   OF    TRADES    AND    OCCUPATIONS. 

companies,  forming  connecting  lines  of  more  extensive  sys- 
tems, to  pro-rate  with  each  other,  to  the  exclusion  of  other 
competing  companies.  The  Federal  Circuit  Court  has  held, 
that  a  contract  between  two  connecting  railroads  —  pro- 
viding for  an  interchange  of  passengers  and  freight  between 
them,  to  the  exclusion  of  other  competing  railroads,  by  the 
issue  of  through  tickets  and  bills  of  lading  only  over  each 
other's  roads —  was  not  in  violation  of  the  Federal  anti-trust 
law.1 

A  combination  of  manufacturers  of  drugs  and  of  whole- 
sale druggists,  formed  for  the  purpose  of  maintaining  the 
prices  of  proprietary  drugs,  violates  the  anti-trust  law  by 
refusing  to  sell  goods  to  a  retailer  who  cuts  prices.2 

Considerable  litigation  has  arisen  out  of  the  combinations 
of  manufacturers  of  articles,  the  exclusive  manufacture  of 
which  is  secured  by  letters-patent.  The  decisions,  how- 
ever, seem  to  have  settled  the  points  of  contention  as 
follows:  The  owner  of  a  patent  is,  of  course,  entitled  to 
a  monopoly  during  the  life  of  the  patent,3  and  the  anti- 
trust laws  do  not  in  any  way  control  or  limit  that  right, 
either  by  declaring  the  monopoly  void,  in  general,  or  by 
denying  to  the  patentee  or  his  assignee  the  right  to  sue  for 
infringements  of  his  patent  rights,  because  he  has  entered 
into  a  combination  to  acquire  and  control  all  valuable 
patents,  covering  machines  which  relate  to  the  same  art  or 
industry,  even  though  that  combination  may  be  unlawful.4 
But  the  mere  fact,  that  the  subject-matter  of  the  monop- 
olistic combination  may  be  patent  rights,  covering 

1  Prescott  &  A.  C.  Ry.  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  73  Fed. 
438. 

2  John  D.  Park  &  Sons  Co.  v.  Nat.  Wholesale  Druggists  Association, 
60  N.  Y.  S.  1064. 

8  See  post,  §  129. 

*  Edison  Electric  Light  Co.t>.  Sawyer  Man.  Electric  Co.,  53  F.  692;  3 
C.  C.  A.  605;  Strait  v.  National  Harrow  Co.,  51  F.  819;  Soda  Fountain 
Co.  v.  Green,  69  F.  333;  Columbia  Wire  Co.  v.  Freeman  Wire  Co.,  71  F. 
302;  disapproving  of  National  Harrow  Co.  v.  Quick,  67  F.  130,  contra. 
§  H3 


APPLICATION   OF   ANTI-TRUST   STATUTES.  413 

machines  employed  in  the  same  art  or  industry,  will  not  pro- 
tect the  combination  from  the  penal  provisions  of  the  anti- 
trust laws.  If  a  corporation  or  association  is  formed  among 
manufacturers  and  patentees  of  certain  articles  of  kindred 
character,  in  order  to  control  the  trade  and  prices  of  such 
articles,  the  combination  is  nevertheless  illegal,  although 
the  exclusive  manufacture  of  the  goods  is  guaranteed  by 
letters-patent  from  the  United  States  government.1  In 
the  Harrow  Company  cases,  cited  in  the  note  below,  the 
manufacturers  of  spring-tooth  harrows  formed  a  combina- 
tion, for  the  purpose  of  providing  for  the  transfer  to  a 
central  corporation  of  all  the  patents  under  which  they 
were  severally  operating,  each  manufacturer  receiving  in 
the  place  of  his  patents  an  exclusive  license  to  manufacture 
the  particular  kind  of  harrow  which  was  covered  by  his 
patent.  All  agreed  that  the  harrow  should  be  sold  at  an 
uniform  price,  to  be  fixed  by  the  combination.  The  Federal 
courts  united  with  the  New  York  courts  in  declaring  this 
combination  to  be  violative  of  the  anti-trust  laws. 

Combinations  of  wholesale  dealers,  —  for  the  purpose  of 
compelling  retail  dealers  to  pay  their  bills,  by  the  agree- 
ment that  the  members  of  the  combination  will  refuse  to 
sell  to  a  retailer  who  has  failed  to  pay  his  bills  due  to  one 
of  the  combination, —  are  held  to  be  lawful  and  not  to  come 
within  the  provisions  of  the  anti-trust  laws.* 

So,  also,  has  it  been  held  to  be  lawful  for  retail  dealers  to 
enter  into  an  agreement,  not  to  deal  with  manufacturers  who 
sell  to  consumers  or  other  than  regular  dealers,  at  points 
where  there  is  a  regular  retail  dealer.3 

1  National  Harrow  Co.  v.  Hench,  66  Fed.  667;  83  Fed.  36;  27  C.  C.  A. 
349;  United  States  v.  Patterson,  59  Fed.  280;  National  Harrow  Co.  t>.E. 
Bement  &  Sons,  47  N.  Y.  S.  462;  21  App.  Div.  (N.  Y.)  290.  But  see 
Columbia  Wire  Co.  v.  Freeman  Wire  Co.,  71  F.  302. 

1  Schulten  v.  Bavarian  Brewing  Co.  (Ky.),  28  S.  W.  504;  Delz  ». 
Winfree,  6  Tex.  Civ.  App.  11. 

8  Jackson  t>.  Stanfleld,  137  Ind.  592;  Bohn  Mfg.  Co.  ».  Hollis,  54 
Minn.  223. 

§  113 


414  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

The  most  curious  judicial  attempt  to  balance  conflicting 
interests,  and  to  do  equity,  under  modern  legislation  regu- 
lating combinations  in  restraint  of  trade,  is  to  be  found  in 
two  recent  cases  in  Pennsylvania.  A  statute  of  that  State 
authorizes  combinations  of  employees  for  the  purpose  of 
enforcing  an  increase  of  wages.  Certain  employers  formed 
an  association  to  resist  these  combinations  of  employees,  one 
of  whose  by-laws  prohibited  members  of  the  association  from 
buy  ing  supplies  from  dealers,  who  sold  to  employers  who  had 
yielded  to  the  demands  of  the  association  of  employees. 
Inasmuch  as  the  employees  had  resorted  to  artificial  means 
to  raise  the  price  of  labor,  the  association  of  employers 
was  held  to  have  been  formed  only  to  resist  this  artificial 
rise  in  wages,  and  not  to  lower  them,  as  regulated  by  the 
law  of  supply  and  demand.  The  combination  and  agree- 
ment of  the  employers  was  held  under  those  circumstances 
not  to  constitute  an  actionable  conspiracy.1 

Under  the  clauses  of  the  anti-trust  laws,  which  declare 
that  where  the  mere  purpose  or  motive  of  an  otherwise 
lawful  association,  a  corporation  or  partnership  for  exam- 
ple, is  to  monopolize  a  trade,  the  courts  have  held  that  no 
offense  has  been  proved  to  have  been  committed,  unless  it 
oe  shown  that  the  purpose  of  the  association  has  been  to 
monopolize  the  business  throughout  the  country  ;  and  the 
mere  fact,  that  the  corporation  or  association  has  actually 
driven  several  competitors  out  of  the  business,  does  not 
prove  the  existence  of  an  agreement  or  a  purpose  to 
monopolize  the  entire  traffic.2  On  the  other  hand,  if  the 
agreement  to  monopolize  the  entire  traffic  is  proven,  its  suc- 
cessful accomplishment  need  not  be  established.3  Nor  is  it 
necessary  that  the  business,  which  the  combination  is  formed 

1  Cote  v.  Murphy,  159  Pa.  St.  420;  Buchanan  v.  Kerr,  169  Pa.  St.  433. 

a  United  States  v.  Qreenhut,  50  F.  469;  s.c.  51  F.  205;  In  re  Corning, 
51  F.  205;  In  re  Greene,  52  F.  104;  United  States  v.  Nelson,  52  F.  646; 
United  States  v.  Patterson,  55  F.  605. 

3  See  cases  in  preceding  note. 

§ 


APPLICATION   OF   ANTI-TRUST   STATUTES.  415 

to  control,  should  be  actually  established.  As  it  was 
stated  in  one  case,  the  statute  does  not  distinguish  between 
strangling  a  commerce  which  has  been  born,  and  preventing 
the  birth  of  a  commerce  which  does  not  exist.1 

The  anti-trust  law  of  a  State,  of  course,  has  a  jurisdic- 
tion limited  by  the  boundaries  of  that  State.  Hence,  of- 
fenses, committed  against  the  law  outside  of  the  State,  are 
not  punishable  under  the  State  law,  in  either  the  Federal  or 
the  State  courts.2 

Some  of  the  anti-trust  statutes  expressly  provide  that 
the  illegality  of  an  association,  partnership,  corporation,  or 
other  combination,  because  it  is  in  restraint  of  trade  under 
the  provisions  of  the  statute,  shall  be  a  good  defense  to 
any  suit  by  such  combination  against  a  third  person,  which 
may  arise  in  the  prosecution  of  the  prohibited  objects  of 
such  combination.  And  that  provision  of  the  anti-trust 
law  has  been  held  to  be  constitutional.3  But,  in  the  ab- 
sence of  such  an  express  provision,  the  illegality  of  the 
combination  or  association  does  not  affect  the  legality  of 
causes  of  action  of  the  members  of  such  a  combination  or 
association  against  third  parties.4  Nor  can  a  stockholder 
in  an  illegal  trust  defend  himself  against  his  liability  on  his 
contracts  to  such  trust,  by  proving  the  illegality  of  the 
trust,  even  in  a  State  where  the  statute  authorizes  such  a  de- 
fense in  actions  by  an  illegal  trust  against  others;  on  the 
general  ground  that  such  a  stockholder  i.s  a  particeps  crimi- 
nis.6 

One  of  the  most  fruitful  sources  of  economic  discontent 
is  occasioned  by  the  rapid  development  in  the  larger  cities 
of  the  so-called  department  stores,  wherein  everything  of  a 

1  United  States  v.  Patterson,  59  F.  280. 

2  (Ireer  Mills  &  Co.  v.  Stoller,  77  F.  1;  In  re  Grice,  79  F.  627. 

8  Ford  v.  Chicago  Milk  Shippers'  Assn.,  155  111.  166;  Bishop  v.  Am. 
Preservers  Co.,  157  111.  284. 

4  The  Charles  E.  Wisewall,  74  Fed.  802;  86  Fed.  671;  30  C.  C.  A.  339; 
Brewster  v.  Miller  (Ky.),  41  S.  W.  301. 

5  Levin  v.  Chicago  Gaslight  &  Coke  Co.,  64  111.  App.  393. 

§  113 


416  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

movable  nature  is  offered  for  sale  under  one  roof ;  dry 
goods?,  hardware,  shoes,  hats,  clothing,  groceries  and  other 
provisions,  wines  and  liquors,  drugs,  jewelry,  etc.  By 
combining  these  many  departments  under  one  management, 
not  only  is  the  convenience  of  the  customer  promoted  by 
being  enabled  to  satisfy  his  or  her  needs  in  every  direction  in 
the  one  establishment,  but  he  is  able  also  in  many  cases  to 
purchase  at  a  less  price  than  what  would  be  charged  for  the 
same  goods  at  the  small  retail  specialist.  The  immense 
volume  of  the  business  of  a  department  store  enables 
goods  to  be  sold  at  a  smaller  profit  than  what  would  be 
required  to  support  the  small  retailer.  The  small  retailer 
does  not,  however,  view  with  unconcern  this  growth  of 
department  stores  to  his  own  ultimate  extinction. 

The  Chicago  City  Council  enacted  an  ordinance,  which 
prohibited  the  sale  of  provisions  and  intoxicating  liquors 
in  stores  in  which  dry  goods,  clothing  or  drugs  are  sold. 
The  Supreme  Court  of  the  State  has  recently  declared  the 
ordinance  to  be  an  unconstitutional  interference  with  the 
personal  liberty  of  the  citizen  which  is  not  justified  by  any 
considerations  of  the  public  health  or  morals.1 

But  it  may  yet  be  an  open  question  still,  whether  a  simi- 
lar prohibition,  enacted  by  the  legislature  in  the  plenitude 
of  its  police  powers  as  revealed  by  the  anti-trust  laws,  may 
not  be  sustained  by  the  courts. 

§  114.  Labor  combinations  —  Trades  unions  — 
Strikes.  —  Like  combinations  of  capital,  all  labor  combi- 
nations having  for  their  purpose  the  enhancement  of  the 
price  of  labor  and  the  control  of  the  terras  of  hiring,  were 
at  common  law  so  far  illegal  as  that  the  courts  would  not 
give  their  aid  in  enforcing  the  obligations  of  the  member 
to  obey  the  orders  of  the  organization  in  a  labor  dispute, 
or  in  any  other  way  to  facilitate  the  purposes  of  the  organ- 

i  City  of  Chicago  v.  Netcher  (1899),  55  N.  E.  707. 
§  1H 


LABOR    COMBINATIONS — TRADES    UNIONS  —  STRIKES.      417 

ization  in  the  industrial  warfare.  But  unlike  combinations 
of  capital,  they  were  by  special  statutes,  dating  back  to  the 
reign  of  Edward  VI.,  and  reaching  to  the  close  of  the 
eighteenth  century,  declared  to  be  criminal  conspiracies, 
and  provision  was  made  for  the  punishment  of  the  mem- 
bers of  the  organizations.1  This  discrimination  against 
labor  organizations,  unjust  as  it  was,  is  rationally  and 
legally  accounted  for  by  the  fact  that  other  statutes  regu- 
lated the  terms  of  hiring  in  all  kinds  of  trades;  and,  con- 
sequently, combinations  of  laborers,  to  raise  wages  or  to 
secure  advantages  which  were  not  provided  for  by  statute, 
were  really  conspiraciesagainstthese  statutes  and  the  power 
of  the  government  to  control  the  labor  contract.  There  was 
no  such  regulation  of  the  terms  of  other  contracts,  and  for 
that  reason  combinations  of  capital  were  not  declared  to 
be  criminal  conspiracies  ;  although,  at  common  law,  combi- 
nations in  unreasonable  restraint  of  trade  were  so  far  held 
to  be  illegal,  as  to  place  them  beyond  judicial  aid  and 
sanction. 

Ignoring  the  important  fact,  that  the  criminal  character 
of  the  labor  combination  was  based  upon  the  express  pro- 
visions of  the  statutes,  which  did  not  come  down  to  the 
American  people  as  a  part  of  the  common  law,  two  early 
cases  in  Pennsylvania  held  the  labor  combination,  formed 
for  the  purpose  of  controlling  the  rate  of  wages,  to  be  a 
criminal  conspiracy;2  while  in  two  New  York  cases,  the 
influence  of  the  English  cases  on  labor  conspiracies  led  to 
the  declaration  by  the  court  that  the  New  York  statute, 
defining  criminal  conspiracy  to  include  combinations  to 
commit  any  act  injurious  to  trade  or  commerce,  made  a 
labor  organization  a  criminal  conspiracy,  even  where  the 
members  of  the  combination  had  only  agreed  upon  the  rate 

1  These  statutes  have  been  repealed  and  labor  organizations  are  now  in 
England  lawful  combinations. 

2  Boot  and  shoe  makers  of  Philadelphia  (1806)  and  journeyman  cord- 
wainers  of  Pittsburg  (1811),  both  printed  in  pamphlet. 

27  §    114 


418  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

of  wages  which  they  would  demand.1  These  cases,  how- 
ever, have  not  become  the  law  of  this  country,  and  they 
were  speedily  followed  by  other  cases  in  Massachusetts, 
New  York  and  Pennsylvania,  which  placed  labor  combina^ 
tions  upon  a  plane  of  legal  equality  with  capitalistic  com- 
binations, by  holding  that  it  was  not  a  criminal  conspiracy 
for  workmen  to  combine  for  the  purpose  of  enhancing  the 
rate  of  wages  or  for  improving,  in  any  other  way,  their 
relations  with  employers.2  In  Carew  v.  Rutherford,  the 
Supreme  Court  of  Massachusetts  said:  "Every  man  has 
a  right  to  determine  what  branch  of  business  he  will  pur- 
sue, and  to  make  his  own  contracts  with  whom  he  pleases, 
and  on  the  best  terms  he  can.  He  may  change  from  one 
occupation  to  another,  and  pursue  as  many  different  occu- 
pations as  he  pleases,  and  competition  in  business  is  law- 
ful. He  may  refuse  to  deal  with  any  man  or  class  of  men ; 
and  it  is  no  crime  for  any  number  of  persons,  without  an 
unlawful  object  in  view,  to  associate  themselves  together 
and  agree  that  they  will  not  work  or  deal  with  certain  men 
or  classes  of  men,  or  work  under  a  certain  price  or  without 
certain  conditions  *  *  *  Freedom  is  the  policy  of  this 
country."  3 

It  may  be  accepted,  therefore,  as  the  law  of  this  country, 
independently  of  the  effect  of  modern  statutes,  to  which  ref- 

1  People  v.  Melvin,  2  Wheeler  Grim.  Gas.  262;  People  v.  Fisher,  14 
Wend.  1. 

8  Com.  v.  Carlisle,  Brightley,  36,  40;  Com.  v.  Hunt,  4  Met.  Ill ;  Boston 
Glass  Mfg.  Co.  v.  Binney,  4  Pick.  425;  Bo  wen  v.  Matheson,  14  Allen, 
499 ;  Master  Stevedores  v.  Walsh,  2  Daly,  1 ;  Carew  v.  Rutherford,  106 
Mass.  1,  13;  Snow  v.  Wheeler,  113  Mass.  179. 

8  In  the  case  of  Master  Stevedores  v.  Walsh,  supra,  the  reader  will 
find  a  most  thorough  exposition  of  the  English  cases  and  statutes,  bear- 
ing on  this  subject.  This  case,  however,  only  holds  that  it  is  not  crimi- 
nal for  workmen  to  combine  to  control  the  terms  of  their  own  hiring, 
and  expressly  distinguishes  such  a  combination  from  one  in  which  the 
purpose  is  to  control  the  business  of  the  employer  in  other  matters,  not 
affecting  the  terms  of  their  own  hiring;  as,  for  example,  the  prevention 
of  the  employment  of  non-union  men. 

§ 


LABOK    COMBINATIONS  —  TRADES    UNIONS STRIKES.      419 

erence  will  be  made  shortly,  that  there  is  nothing  criminal 
in  trade  or  labor  combinations,  so  far  as  they  undertake  to 
do  no  more  than  by  combination  to  better  their  own  con- 
dition, by  dictating  the  terms  of  the  contract  of  hiring 
for  themselves.  And  in  laying  this  down  as  the  law  of 
the  land,  the  courts  h;ive  merely  secured  to  the  workman 
the  same  liberty  of  contract,  which  the  capitalist  has  en- 
joyed at  the  common  law,  and  which  in  preceding  pages 
and  sections  of  this  chapter  has  been  declared  to  be  the 
constitutional  right  of  every  man.  We  find  in  many  of 
the  States,  notably,  Massachusetts,  Michigan,  Maryland, 
Iowa,  statutes  which  provide  for  the  incorporation  of  trades 
unions  and  other  labor  organizations;  and  in  all  of  them, 
one  of  the  permissible  objects  of  incorporation  is  declared 
to  be  the  procurement  of  better  terms  of  employment.1 

Congress  has  also  provided  for  the  incorporation  of  na- 
tional trades  unions,2  for  the  attainment  of  similar  purposes. 

Not  only  are  labor  organizations  thus  recognized  ;  but  be- 
cause membership  in  one  of  them  acquires  a  material  value, 
through  the  possession  of  property,  the  establishment  of 
aid  funds,  etc.,  the  courts  will  inquire  into  the  rightful  ness 
of  expulsion  of  a  member  from  one  of  these  organizations, 
and  order  his  reinstatement,  if  his  expulsion  is  found  to  be 

1  In  Massachusetts,  the  statute  reads  "  for  the  purpose  of  Improving 
in  any  lawful  manner  the  condition  of  any  employees  in  any  lawful  trades 
or  employments,  either  in  respect  to  their  employment,"  etc.    In  Mary- 
land, "  to  promote  the  well-being  of  their  every-day  life,  and  for  mutual 
assistance  in  securing  the  most  favorable  conditions  for  the  labor  of 
their  members,"  etc.    In  Iowa,  "for  the  regulation,  by  lawful  means, 
of  prices  of  labor,  of   hours'  work,  and  other  matters,  pertaining  to 
industrial  pursuits,"    etc.      In   Michigan,  "  for    the    improvement  of 
their  several  social  and  material  interests,  the  regulation  of  their  wages, 
the  laws  and  conditions  of  their  employment,  the  protection  of  their 
joint  and  individual  rights  in  the  prosecution  of  their  trades  or  indus- 
trial avocations,"  etc.    In  all  of  the  statutes,  provisions  are  made  for 
aid  to  the  sick   and    unemployed,  and   for   death  benefits,  and   other 
benevolent  purposes,  which  in  nowise  concern  us  in  the  present  con- 
nection. 

2  Acts  of  1886,  ch.  567. 

§  114 


420  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

unwarranted  by  the  rules  of  the  organization ;  and  they  will 
award  damages  for  loss  of  employment,  or  for  any  other 
injury  which  he  may  have  suffered  in  consequence.1 

A  New  York  statute  provides  for  the  registration  of 
labels  of  trade  unions,  and  the  punishment  of  those  who 
make  use  of  the  label  on  goods  which  are  not  made  by  union 
labor.  The  labels  are  affixed  to  goods  which  are  manu- 
factured by  union  labor,  so  that  purchasers,  who  are  so 
minded,  may  discriminate  in  their  purchases  against  the 
products  of  non-union  labor.  This  statute  was  sustained 
as  a  lawful  assistance  to  union  labor,  and  it  was  held  not  to 
operate  as  an  invalid  discrimination  against  non-union 
labor.2 

There  are,  however,  statutes  in  most  of  the  States,  as 
well  as  an  act  of  Congress,  which  expressly  prohibit  all 
combinations  in  restraint  of  trade.  Those  statutes  have 
been  fully  explained  in  a  preceding  section3  in  their  bear- 
ing upon  the  combinations  of  capital  in  restraint  of  trade  ; 
and  in  that  connection,  it  has  been  shown  that  all  combi- 
nations to  control  prices  and  the  terms  of  contract  are  by 
these  statutes  made  criminal  misdemeanors,  and  the  com- 
binations criminal  conspiracies,  it  matters  not  how  reason- 
able the  regulations  and  purpose  of  the  capitalistic  combi- 
nation may  be,  provicU-d  they  do  in  fact  restrain  trade  and 
competition,  f  Unless  there  are  qualified  clauses  in  these 
statutes,  excluding  labor  combinations  from  the  operation 
of  their  provisions,  the  irresistible  conclusion  is  that  all 
labor  combinations,  in  restraint  of  trade  and  competition, 
are  prohibited  by  these  anti-trust  statutes,  as  much  so  a* 
are  the  combinations  of  capital.  The  laborer,  by  joining 

1  Master  Stevedores  v.  Walsh,  2   Daly,  1;     People  ex  rel.  Baker  v. 
Coachmen's  Union  Ben.  Assn.,  24  N.  Y.  S.  114;  s.  c.  4  Misc.  Rep.  424; 
Merschiem  ».  Musical  Mut.  Protective  Union,  8  N.  Y.  S.  702;  s.  c.  24 
Abb.  N.  C.  252;  People  ex  rel.  Deverell  v.  Musical  Mut.  Protective  Union, 
118  N.  Y.  101. 

2  Perkins  v.  Heert,  39  N.  Y.  S.  223;  5  App.  Div.  335;  158  N.  Y.  306. 

3  §  112. 

§  1H 


LABOR    COMBINATIONS —  TRADES    UNIONS STRIKES.      421 

a  trade-union,  undertakes  by  his  entry  into  such  a  combi- 
nation, to  enhance  the  price  of  the  commodity  which  he 
has  to  sell,  i.  e.t  his  labor.  And  by  so  doing,  he  restrains 
trade  and  competition,  in  violation  of  the  anti-trust  laws, 
as  much  as  does  the  manufacturer  of  oil  and  sugar  by  the 
formation  of  a  trust.  iThe  national  anti-trust  law  has  been 
held  to  apply  to  labor  organizations  in  a  number  of  cases, 
beginning  with  the  celebrated  Debs  case,1  and  followed  by 
a  large  number  of  cases.  But  it  is  difficult  to  determine 
how  far  most  of  the  cases  may  be  cited  in  support  of  the 
proposition,  that  a  trades-union  is  necessarily  a  violation  of 
the  anti-trust  law,  as  in  most  of  the  cases  the  parties 
have  not  confined  themselves  to  an  agreement,  that  they 
will  insist  upon  certain  terms  of  employment,  but  have 
proceeded  by  divers  means  to  compel  all  others,  not  mem- 
bers of  the  union,  who  work  at  the  same  trade,  to  combine 
with  them,  in  forcing  the  employers  to  accede  to  their 
demands.  There  are,  however,  a  few  cases,  in  which  the 
issue  is  clearly  met  and  settled,  that  the  anti-trust  laws 
prohibit  alike  labor  and  capitalistic  combinations  in  re- 
straint of  trade.  Thus  in  one  case,2  the  Supreme  Court  of 
Illinois  held  an  association  of  stenographers,  which  was 
formed  "  to  establish  and-maintain  uniform  rates  of  charges 
and  to  prevent  competition  among  its  members  was  an 
illegal  combination  in  restraint  of  trade,  and  refused  to 
allow  an  action  to  be  brought  by  one  member  against  an- 
other for  underbidding  him  in  violation  of  the  rules  of  the 
association.  In  another  case,3  the  by-la svs  of  a  masons' 
and  builders'  association,  the  membership  of  which  in- 
cluded six-sevenths  of  the  contractors  of  a  city,  which  re- 
quired the  members  to  first  submit  all  bids  made  by  them 

1  United  States  v.  Debs,  62  Fed.  832;  64  Fed.  Rep.  724;  65  Fed.  210; 
In  re  Debs,  158  U.  S.  564. 

3  Moore  v.  Bennett,  140  111.  69. 

3  Milwaukee  Masons  &  Builders'  Assn.  v.  Niezerowski,  95  Wis.  129. 
See,  also,  Mapstick  u.  Range,  9  Neb.  390. 


422  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

to  the  association  and  the  lowest  bidder  to  add  six  per  cent 
to  his  estimate,  before  he  submitted  his  bid  to  the  owner  or 
architect,  and  to  pay  to  the  association  the  added  six  per 
cent,  were  unlawful  contracts  in  restraint  of  trade,  and 
were  void.  On  the  other  hand,  it  has  been  held  in  Oregon,1 
that  where  a  trades  union  seeks  by  fair  means  to  compel  an 
employer  to  obey  a  reasonable  rule  of  the  union,  the  union 
is  not  engaged  in  the  creation  of  a  monopoly,  in  violation 
of  the  anti-trust  laws. 

In  a  few  of  the  States,  there  are  special  statutes,  which 
expressly  authorize  workmen  to  combine  "  for  the  purpose 
of  obtaining  an  advance  in  the  rate  of  wages  or  compensa- 
tion or  of  maintaining  such  rate  "  (New  York  statute)  and 
declare  that  such  a  combination  is  not  a  conspiracy.  Such 
laws  are  to  be  found  in  New  York,  Pennsylvania,  New  Jersey 
and  Colorado.2 

The  New  Jersey  statute  was  held  to  authorize  and  to 
make  lawful  a  combination  of  workmen  to  secure  the  con- 
trol of  the  work  connected  with  their  trade  by  any  peace- 
able means.  And  the  court  declared  that  equity  would  not 
enjoin  such  a  combination,  on  the  ground  that  it  was  detri- 
mental to  trade  or  injurious  to  individual  business.8  The 
statutes,  heretofore  referred  to,  which  authorize  the  incor- 

1  Longshore  Printing  &  Pub.  Co.  v.  Howell,  26  Oreg.  527. 

2  The  Pennsylvania  statute  authorizes  workmen  who  are  members  of 
a  union  to  strike  in  combination,  whenever  the  employer  fails  to  come  to 
the  terms  upon  which  the  members  are  alone  allowed  by  the  rules  of  the 
union  to  work.      The  New  Jersey  statute  declares  it  to  be  lawful  "  for 
any  two  or  more  persons  to  unite,  combine,  or  bind  by  oath,  covenant," 
etc.,  "  to  persuade,  advise,  or  encourage  by  peaceable  means  any  person 
or  persons  to  enter  into  any  combination  for  or  against  leaving  or  enter- 
ing into  the  employment  of  any  person  or  persons  or  corporations." 
The  Colorado  legislature  copied  the  New  Jersey  statute,  and  added  a 
declaration  that  it  shall  be  lawful  for  workmen  to  combine  to  secure  in- 
crease of  wages,  shorter  hours  of  labor,  and  to  promote  their  welfare  as 
workmen  in  any  other  way,  provided  they  do  not  employ  unlawful 
means,  such  as  threats,  boycott,  violence,  etc.,  to  accomplish  the  pur- 
pose of  the  combination. 

3  Mayer  ».  Journeymen  Stone  Cutters  Assn.,  47  N.  J.  Eq.  519. 

§  1H 


LABOR   COMBINATIONS TRADES    UNIONS STRIKES.      423 

poration  of  labor  organizations  for  the  purpose  of  control- 
ling wages  and  the  terms  of  the  labor  contract,  would  prob- 
ably be  sustained  as  exceptions  to  the  anti-trust  laws, 
which  prohibit  similar  combinations  among  capitalists;  so 
that  in  those  States,  a  labor  organization,  duly  incorporated, 
would  not  be  an  unlawful  combination  in  restraint  of  trade, 
even  though  it  were  large  enough  to  completely  control  the 
price  of  labor  and  the  terms  of  hiring  in  a  particular  trade 
or  occupation,  as  some  of  the  labor  organizations  are  ;  for 
example,  the  locomotive  engineers.1  But,  after  the  reader 
has  carefully  considered  the  numerous  cases,  cited  and  ex- 
plained in  preceding  sections,  which  pronounce  unconstitu- 
tional, because  they  are  special  or  deny  to  all  of  the  same 
class  the  equal  protection  of  the  laws,  all  laws  which  dis- 
criminate in  favor  of  some  and  against  others,  would  have 
no  difficulty  in  framing  an  argument  to  prove  that  the  anti- 
trust laws,  taken  in  conjunction  with  the  statutory  exemp- 
tion of  labor  organizations  from  the  restrictions  of  those 
laws,  are  an  unconstitutional  discrimination  against  the 
capitalist  and  an  unauthorized  favoring  of  the  laboring 
classes  in  the  industrial  warfare.2  But  this  legislation  is  an 
undoubted,  and,  from  the  practical  standpoint,  probably 
unassailable  determination  of  the  State  to  diminish  the 
natural  inequalities  of  capital  and  labor,  by  prohibiting 
combinations  of  capital  and  permitting  combina- 
tions of  labor.  When  one  considers  this  matter, 
apart  from  the  fiction  of  equality  of  all  men  before  the 
law,  and  from  the  technical  rules  of  constitutional  law 

1  But  see  Farmer's  Loan  &  Trust  Co.  v.  Northern  Pac.  Ry.  Co.,  60  Fed. 
803,  in  which  it  was  held  there  was  nothing  in  the  Congressional  author- 
ity (act  of  1886)  for  the  incorporation  of  national  trades-union  to  author- 
ize combinations  and  conspiracies  of  interstate  railroad  employees  to 
quit  in  a  body  the  service  of  the  railroad,  with  the  intent  to  embarrass 
the  business  of  the  railroad,  and  the  ulterior  purpose  of  enforcing  their 
demands  agaimst  the  employers.     But  see   contra,  Arthur  v.  Oakes,  63 
Fed.  310;  11  C.  C.  A.  209. 

2  See  to  this  effect,  Cotew.  Murphy,  159  Pa.  St.  420. 

§  114 


424  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

which  rest  upon  that  fiction,  it  does  not  seem  unreason- 
able to  make  this  discrimination,  while  the  liberty  of  con- 
tract of  both  parties  is  protected  from  infringement  or 
restriction  by  controlling  legislation.  The  individual  la- 
borer is  completely  at  the  mercy  of  the  employer,  if  he 
cannot  combine  with  his  fellows  to  maintain  a  standard  of 
wages  and  to  control  the  terms  of  the  labor  contract  in 
other  matters.  Even  then,  is  there  no  real  equality  of 
conditions  between  the  employer  and  the  employee.  The 
individual  employer,  who  is  prohibited  from  combining, 
has  through  his  control  of  the  materials  of  production  and 
the  immediate  necessities  of  the  workmen  the  advantage 
over  the  members  of  the  labor  organization,  from  whom  he 
selects  his  employees.  The  thorough-going  individualist 
would,  of  course,  condemn  any  restrictions  upon  voluntary 
combinations  of  either  capital  or  labor,  and  the  constitu- 
tional requirements  of  uniformity  of  laws  for  all  men  and 
the  equality  of  all  men  before  the  law,  sustain  him  in  this 
contention. 

Granted,  that  labor  organizations  are  lawful  combina- 
tions in  restraint  of  trade,  when  they  are  formed  for  the 
purpose  of  controlling  the  price  of  labor,  there  is  no  ille- 
gality in  the  simple  act  of  striking.  A  body  of  workmen, 
belonging  to  the  same  union,  and  employed  in  the  same 
industry,  have  an  undoubted  right  to  strike,  i.  e.,  to  leave  the 
situations  which  they  have  held,  if  the  employer  refuses  to 
agree  to  their  terms  of  employment.  Where  the  individual 
workman  does  this,  his  action  is  unquestionably  lawful,  if 
he  acts  in  a  thoroughly  peaceable  manner;  and  no  law 
could  deny  him  this  right,  without  violating  the  constitu- 
tional principle  of  liberty  of  contract,  unless  he  has  been 
engaged  to  serve  for  a  definite  period  of  time,  and  he  pro- 
poses to  abandon  his  work  before  the  expiration  of  the  term 
of  service.  In  a  preceding  section  l  it  has  been  explained  that 

1  5  104. 

§  114 


LABOR    COMBINATIONS  —  TRADES   UNIONS  — STRIKES.      425 

there  is  no  legal  difficulty  in  the  way  of  enjoining  the 
specific  performance  of  a  labor  contract,  except  in  those 
cases  in  which  the  work  called  for  by  the  contract  required 
unusual  skill ;  which,  of  course,  could  not  be  commanded 
by  an  injunction.  But  even  in  such  a  case,  equity  has 
frequently  compelled  indirectly  the  performance  of  the 
contract  for  work,  by  enjoining  the  "  striking"  artist, 
singer,  etc.,  from  fulfilling  any  other  engagement 
during  the  period  of  the  broken  contract  of  service.  A 
strike  without  cause  during  the  period  of  hiring,  where 
the  contract  stipulates  the  period  of  hiring,  is  undoubtedly 
unlawful,  whether  it  is  done  by  an  individual  workman  or 
by  a  combination  of  workmen,  acting  in  unison. 

But  in  its  application  to  most  labor  disputes  and  to  most 
strikes  of  workmen,  this  distinction  between  definite  and 
indefinite  periods  of  service  is  almost  an  academic  ques- 
tion, for  the  reason  that  it  rarely  happens  that  workmen 
are  employed  for  a  definite  period  of  time.  The  labor 
contract  is  almost  invariably  a  hiring  from  day  to  day;  and 
if  the  contract  does  not  expressly  or  by  provision  of  law 
require  a  notice  to  quit,  either  party  to  it  may  terminate 
the  contractual  relation  at  the  close  of  any  day  without  any 
notice  whatever.  And,  whenever  labor  combinations  for 
regulating  the  terms  of  the  contract  of  hiring  are  held  to 
be  lawful  and  not  in  contravention  of  the  anti-trust  or 
other  prohibitive  laws,  a  strike  by  a  body  of  workmen  in 
unison  would  be  as  lawful  as  is  the  same  act  by  an  indi- 
vidual workman,  as  long  as  the  abandonment  of  the  work 
was  made  for  the  purpose  of  securing  better  terms,  and  was 
not  accompanied  by  acts  of  lawlessness,  disorder  or 
violence.1 

1  See  Longshore  Printing  &  Pub.  Co.  v.  Howell,  26  Oreg.  527;  Arthur 
v.  Oakes,  63  Fed.  310;  11  C.  C.  A.  209;  Perkins  v.  Rogg,  28  Weekly  Law 
Bui.  32;  Rogers  v.  Evarts,  17  N.  Y.  Sup.  264.  And  in  the  last  case,  it  is 
expressly  held  to  be  lawful  for  the  union  to  sustain  the  strike,  by  provid- 
ing out  of  its  funds  for  the  payment  of  the  expenses  of  the  strikers. 

§  114 


426  REGULATION    OF   TRADES    AND   OCCUPATIONS. 

But  experience  has  taught  the  workmen  that  in  the  great 
majority  of  labor  disputes,  a  peaceable  withdrawal  from 
work  of  even  the  whole  body  of  workmen,  without  the  use 
of  means  to  prevent  others  from  taking  their  places,  fails 
utterly  to  accomplish  the  end  they  have  in  view,  viz.:  to 
force  the  employer  to  agree  to  the  terms  of  employment 
which  are  demanded  by  the  labor  combination.  The  strik- 
ers, therefore,  feel  the  need  of  resorting  to  various  meth- 
ods of  consolidating  the  whole  body  of  workmen  against  the 
employer  or  employers,  which  unquestionably  in  most 
oases  obstruct  the  business  of  others,  including  the  em- 
ployers and  the  would-be  employees,  who  are  willing  to  work 
on  the  terms,  which  are  proposed  by  the  employers.  Even 
if  the  strikers  do  not  resort  to  acts  of  violence  against 
the  persons  and  property  of  employers,  and  against  the 
workmen  who  are  willing  to  take  the  places  of  the  strikers, — 
and  violence  is  the  usual  accompaniment  of  almost  every 
extensive  strike —  they  attempt  to  persuade  others  from  en- 
gaging in  work,  and  threaten  them  with  all  sorts  of  dangers, 
while  they  visit  contumely  upon  them  by  calling  them 
*'  scabs,"  and  by  the  use  toward  them  of  other  opprobri- 
ous epithets.  To  secure  their  end,  strikers  are  in  the  habit 
of  stationing  men  —  picketing  or  patrolling  it  is  called, — 
in  the  neighborhood  of  the  works  or  places  of  business  of 
the  employers,  whose  duty  is  thus  to  persuade  and  prevent 
by  these  different  means  other  workmen  from  taking  the 
places  which  they  have  themselves  abandoned.  These  acts 
are  so  much  akin  to  boycotting,  that  their  legal  character 
will  be  discussed  in  the  next  section  in  connection  with  the 
subject  of  boycotting. 

But  this  is  an  appropriate  place  for  the  consideration  of 
the  law  of  conspiracy  as  it  bears  upon  the  question  of  the 
constitutional  rights  of  workmen  in  the  industrial  warfare. 

The  long  established  definition  of  conspiracy,  which 
is  illegal  and  which  is  actionable  civilly  or  may 
be  punished  criminally,  is  a  combination  of  two 
§  114 


LABOR    COMBINATIONS — TRADES    UNIONS STRIKES.      427 

or  more  persons  to  do  an  act  unlawful  in  itself, 
or  to  do  a  lawful  act  by  unlawful  means.  Under  the 
old  law  of  conspiracy,  as  indicated  by  this  definition,  it  is 
not  possible  for  one  to  conceive  of  any  act  of  conspiracy, 
which  would  not  be  equally  reprehensible,  if  done  by  a 
single  individual.  An  individual  cannot  do  a  lawful  act  by 
unlawful  means,  any  more  than  can  a  combination  of  two 
or  more  persons.  But  the  ever  growing  disposition  of 
persons,  particularly  in  the  prosecution  of  the  modern  in- 
dustrial warfare,  to  combine  their  economic  forces,  in  order 
to  restrain  another's  liberty  of  action,  by  means  which 
were  in  themselves  not  unlawful,  and  to  secure  the  doing 
of  an  act,  which  in  itself  is  likewise  lawful,  revealed 
to  the  juristic  mind  the  possibility  of  securing  by 
combination  an  end,  which  was  held  to  be  against 
public  policy,  viz. :  an  undue  restraint  of  trade  and 
competition,  without  doing  an  unlawful  act,  or  em- 
ploying unlawful  means  in  doing  a  lawful  act.  It 
became  apparent,  therefore,  that  the  definition  of 
conspiracy  had  to  be  enlarged,  in  order  to  include  combina- 
tions, to  do  lawful  acts  by  lawful  means,  where  the  motive 
or  intent  is  unlawful.  This  enlargement  of  the  scope  of 
criminal  conspiracy  is  not  peculiar  to  labor  disputes;  but 
we  are  in  this  connection  only  concerned  with  its  applica- 
tion to  the  subject  under  inquiry.  It  is  not  a  criminal 
conspiracy,  independently  of  modern  statutes,  for  people, 
either  as  employers  or  employees,  to  combine  their  economic 
forces,  in  order  to  gain  an  economic  advantage  over  their 
antagonists.  That  seems  to  be  guaranteed  to  them,  and  to 
workmen  in  particular  by  modern  statutes,  provided  they 
do  not  do  any  unlawful  act,  or  a  lawful  act  by  unlawful 
means.  But  in  several  cases,  the  courts  seemed  to  hold 
that,  if  the  strike,  ordered  by  the  union  or  labor  organiza- 
tion, be  so  conducted  as  to  maliciously  cripple  the  employ- 
ers' business,  the  combination  would  thereby  become  a 
criminal  conspiracy,  even  though  no  unlawful  act  be  done 

§  114 


428  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

and  no  unlawful  means  be  employed.1  In  the  Nebraska 
case,  certain  tailors  agreed  to  strike  on  a  certain  day, 
and  to  return  all  work  unfinished  which  had  been  cut  out 
for  them  and  given  to  them.  The  court  found  that  the 
tailors  were  actuated  by  a  malicious  motive  to  injure  the 
employer,  and  he  was  awarded  damages  for  the  malicious 
conspiracy.  The  other  two  cases  grew  out  of  the  strike  of 
the  employees  of  the  Northern  Pacific  Railroad.  The  rail- 
road was  at  the  time  in  the  hands  of  a  receiver.  The 
receiver,  Oakes,  secured  an  injunction,  against  Arthur,  the 
chief  of  the  Brotherhood  of  Locomotive  Engineers,  and 
others,  restraining  them  from  combining  to  intimidate  or 
advise  employees  of  the  railroad  to  strike  in  such  a  way  as 
to  cripple  the  business  of  the  railroad.  In  the  Circuit 
Court  of  Appeals,  the  injunction  was  changed  so  as  to  per- 
mit combinations  to  strike,  and  advising  others  to  join  with 
them,  but  restrained  the  use  of  intimidation,  as  well  as  the 
gratification  of  the  malicious  desire  to  cripple  the  business 
of  the  railroad.  These  railroad  cases  are  complicated  by 
the  following  facts:  (1 )  That  the  railroad  business  is  a  bus- 
iness "  affected  with  a  public  interest ;  "  which  rather  places 
striking  employees  in  the  attitude  of  attacking  the  public 
interests,  as  well  as  the  interests  and  property  of  the  rail- 
road, their  employer;  (2)  that  the  railroad  was  engaged  in 
interstate  commerce,  and  hence  the  provisions  of  the  inter- 
state commerce  act  applied  to  and  controlled  the  case,  and 
(3)  that  the  railroad  was  at  the  time  in  the  hands  of  a 
receiver,  an  officer  of  the  court,  who  was  conducting  the 
business  of  the  railroad  under  the  orders  of  the  court,  so 
that  the  combinations  of  strikers  might  have  been  treated 
as  conspirators  against  the  mandates  of  the  court.  But 
these  facts  do  not  seem  to  account  for  the  declaration  of 
the  court  that  a  combination,  formed  for  the  purpose  of 

1  Arthur  v.  Oakes,  63  Fed.  310,  317,  321;  a.  c.  11  C.  C.  A.  209;  Farm- 
ers' Trust  Co,  v.  N.  P.  B.  R.,  60  Fed.  803;  Mapstrick  v.  Range,  9  Neb. 
390  (2  N.  W.  739). 
§  H4 


LABOK    COMBINATIONS TRADES    UNIONS  —  STRIKES.      429 

maliciously  seeking  to  do  injury  to  the  business  of  an  em- 
ployer, is  an  unlawful  conspiracy,  even  though  the  means 
employed  were  lawful.  We  must  except  these  and  the 
Nebraska  cases,  as  authorities  for  this  proposition  as  a  gen- 
eral rule  of  the  law  of  conspiracy. 

One  can  understand  how  strikers  may  be  guilty  of  a 
criminal  conspiracy,  because  they  have  no  satisfactory  and 
just  reason  for  striking,  and  only  strike  in  order  to  gratify 
their  malicious  feelings  towards  the  employer.  But  if  the 
employees  actually  or  professedly  strike,  in  order  to  ob- 
tain an  increase  of  wages  for  themselves  or  to  better  the 
terms  and  conditions  of  their  employment,  which  they 
professedly  have  a  right  to  do,  the  combination  strike  is 
not  converted  into  an  unlawful  conspiracy,  because  in 
their  effort  to  win  their  battle  the  workmen  display  a 
venomous  or  malicious  desire,  and  endeavor,  to  cripple  the 
employer's  business,  as  long  as  they  do  not  do  acts  and 
employ  means,  which  are  in  themselves  unlawful.  The 
intent  to  cripple  the  employer's  business  is  necessary  to  a 
successful  strike.  If  the  employees,  who  are  dissatisfied 
with  the  terms  of  employment,  give  their  employers 
ample  notice  of  their  intention,  so  that  he  may  secure 
others  to  take  their  places,  or  select  a  time  for  strik- 
ing when  business  is  slack  and  the  employer's  business 
will  not  be  seriously  incommoded  thereby ;  it  would  be 
folly  for  them  to  expect  success.  In  no  kind  of  warfare, 
industrial  or  otherwise,  is  a  general  expected  to  give  the 
warnings  and  notices,  which  the  code  of  honor  required  in 
the  duel.  If  the  conditions  of  the  antagonists  in  the  eco- 
nomic warfare,  —  and  that  labor  disputes  do  constitute  acts 
of  war,  no  one  can  reasonably  deny  —  were  equalized,  as 
the  duellists  tried  to  do  in  the  past,  there  may  be  some 
reason  for  requiring  that  the  strikers  show  some  considera- 
tion for  the  interests  and  the  business  of  the  employer.  In 
view  of  the  gross  inequalities  of  the  contestants,  it  is  cer- 
tainly not  equitable  to  require  such  altruistic  conduct  on 

§  114 


430  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

the  part  of  striking  employees.  Nor  would  I  consider  a 
law  to  observe  the  constitutional  guaranty  of  liberty,  which 
would  make  in  the  case  of  employments  of  a  strictly  private 
character,  a  criminal  or  actionable  conspiracy  out  of  a 
combination  of  workmen  to  strike  —  where  the  motive  was 
a  lawful  one,  for  example,  to  increase  their  wages,  and 
the  means  employed  were  of  a  lawful  character  —  simply 
because  in  conducting  the  strike  they  were  actuated  by  a 
malicious  or  wilful  intent  to  do  injury  to  the  business  of 
the  employer.  As  it  was  stated  in  the  leading  English 
case  i1  "Of  the  general  proposition,  that  certain  kinds  of 
conduct  not  criminal  in  any  one  individual  may  become 
criminal  if  done  by  combination  among  several,  there  can 
be  no  doubt.  The  distinction  is  based  on  sound  reason, 
for  a  combination  may  make  oppressive  or  dangerous  that 
which,  if  it  proceeded  only  from  a  single  person,  would 
be  otherwise,  and  the  very  fact  of  the  combination  may 
show  that  the  object  is  simply  to  do  harm,  and  not  to  exer- 
cise one's  own  just  rights.  In  the  application  of  this  un- 
doubted principle  it  is  necessary  to  be  very  careful  not 
to  press  the  doctrine  of  illegal  conspiracy  beyond  that 
which  is  necessary  for  the  protection  of  individuals 
or  of  the  public ;  and  it  may  be  observed  in  pass- 
ing that  as  a  rule  it  is  the  damage  wrongfully  done 
and  not  the  conspiracy  that  is  the  gist  of  actions  on  the 
case  for  conspiracy.  *  *  *  But  what  is  the  definition 
of  an  illegal  combination?  It  is  an  agreement  by  one  or 
more  to  do  an  unlawful  act  or  to  do  a  lawful  act  by  unlaw- 
ful means.  *  *  *  Have  the  defendants  combined  to 
do  an  unlawful  act?  Have  they  combined  to  do  a 
lawful  act  by  unlawful  means?  *  *  *  The  unlaw- 
ful act  agreed  to,  if  any,  by  the  defendants  must  have 
been  the  intentional  doing  of  some  act  to  the  detriment 
of  the  plaintiff's  business  without  just  cause  and  ex~ 

1  Mogul  S.  S.  Co.  v.  McGregor,  L.  R.  23  Q.  B.  D.  598. 
§  114 


LABOR   COMBINATIONS — TRADES   UNIONS — STRIKES.      431 

cuse.  *  *  *  The  truth  is  that  the  combination  of 
capital  [or  labor]  for  purposes  of  trade  and  competition  is 
a  very  different  thing  from  such  a  combination  of  several 
persons  against  one,  with  a  view  to  harm  him,  as  falls  under 
the  head  of  an  indictable  conspiracy.  There  is  no  just 
cause  or  excuse  in  the  latter  class  of  cases.  There  is  such 
a  just  cause  or  excuse  in  the  former.  There  are  cases  in 
which  the  very  fact  of  a  combination  is  evidence  of  a 
design  to  do  that  which  is  hurtful  without  just  cause  —  is 
evidence  —  to  use  a  technical  expression  —  of  malice.  But 
it  is  perfectly  legitimate,  as  it  seems  to  me,  to  combine 
capital  [or  labor"]  for  the  mere  purposes  of  trade,  for 
which  capital  [or  labor]  may,  apart  from  combination,  be 
legitimately  used  in  trade."  J 

But  I  think  a  sound  and  reasonable  distinction  can  and  J 
should  be  made  in  this  connection  between  the  strikes,  ' 
which  occur  in  businesses  of  a  strictly  private  character, 
and  those  which  occur  among  the  employees  of  a 
railroad,  or  of  any  other  employer,  whose  business 
is  "  affected  with  a  public  interest."  If  the  cloak-makers 
of  New  York  should  go  out  on  a  strike  against  their  em- 
ployers, in  order  to  secure  better  wages  or  shorter  hours, 
even  though  the  strike  should  be  willfully  begun  at  a  time 
when  the  long  continuance  of  the  strike  would  work  the 
greatest  injury  to  the  business  of  the  employers,  there  is 
no  consequent  disturbance  in  general  of  the  business  and 
commerce  of  the  city,  so  as  to  work  injury  to  any  one  but 
the  parties  who  are  immediately  concerned  in  the  labor 
dispute.  The  general  business  of  the  city  is  in  no  way 

1  I  have  in  these  quotations  from  the  English  case,  interpolated,  in 
brackets,  the  words  "  or  labor,"  in  order  to  emphasize  the  soundness 
of  this  Judicial  explanation  of  conspiracy  in  its  application  to  combinations 
of  workmen  in  their  contest  with  their  employers.  This  case  is  more 
fully  presented  and  discussed  in  a  preceding  section,  §  110,  p.  372, 
et  seq.  As  an  authority  in  England,  this  definition  of  conspiracy  has 
been  very  materially  modified  by  the  more  recent  case  of  Allen  v.  Flood, 
(1898)  A.  C.  1,  which  is  very  fully  set  forth  in  the  next  section. 

§  114 


432  REGULATION    OF    TRADES    AND   OCCUPATIONS. 

obstructed  by  the  strike.  But  if  the  employees  of  an  ex- 
tensive railroad  system,  or  of  the  street  railways  of  a  city, 
should  strike,  and  they  select  the  time  of  the  year,  when 
they  could  do  irreparable  injury,  not  only  to  the  railroad 
companies,  but  likewise  to  the  great  public  who  rely  upon 
these  railroads  or  street  railways  for  transportation  of  them- 
selves or  their  goods,  in  the  prosecution  of  business  and 
commerce ;  a  new  element  of  injury  has  entered  into  the 
case,  which  is  not  to  be  found  in  the  case  of  a  strike  of 
workmen  engaged  in  a  strictly  private  business.  The 
widespread  interests  of  the  public  in  general  are  jeopar- 
dized by  the  persistence  of  a  general  strike  of  the  railroad 
employees.  If  the  railroad  business  is  so  far  a  business 
affected  with  a  public  interest,  as  that  the  State  may  inter- 
fere with  the  liberty  of  contract  of  the  railroad,  and  estab- 
lish a  maximum  charge  for  its  services  to  its  patrons  —  and 
of  this  proposition  there  can  now  be  no  doubt1  —  then  the 
contractual  relation  of  the  railroad  or  street  railway  with 
its  employees,  is  sufficiently  affected  with  a  public  interest 
to  justify  State  regulation  of  the  terms  of  service  of  such 
employees  ;  and  in  the  absence  of  such  a  regulation,  to  treat 
the  employees  as  quasi-public  officials,  and  to  compel  them, 
in  their  disputes  with  the  railroads,  to  observe  a  reasonable 
regard  for  the  public  interests.  . 

§  115.  Strikes, continued,  and  Boycotts. — In  the  preced- 
ing section,  I  intended  to  consider  the  legal  right  and  status 
of  only  those  combinations  of  workmen,  which  are  composed 
altogether  of  the  striking  workmen,  and  to  leave  for  the  pres- 
ent section  the  consideration  of  strikes,  which  are  conducted 
or  participated  in  by  others  than  those  who  are  the  striking 
workmen.  There  is  an  important  legal  distinction  between 
the  two  forms  of  strikes  and  labor  combinations.  To 
illustrate :  The  employees  of  a  particular  railroad  system 

1  See  tonte,  §§  96,  97. 
§  115 


STRIKES,    CONTINUED,    AND    BOYCOTTS.  433 

agree  among  themselves  and  without  any  co-operation  with 
others,  who  are  not  in  the  same  employment,  that  they  will 
strike,  unless  the  railroad  authorities  increase  their  wages 
or  comply  with  the  workmen's  demands  fora  change  in  any 
other  of  the  terms  of  hiring.  In  such  a  supposable  case, 
only  two  legal  questions  are  involved :  first,  Have  these  em- 
ployees of  the  same  employer  the  right  to  combine  to  force 
the  employer  to  the  acceptance  of  their  terms  of  contract? 
secondly,  What  means  may  they  employ  in  bringing  the 
employer  to  their  terms?  But  this  is  not  the  common  and 
prevalent  form  of  labor  combinations.  Workmen  of  all 
trades  do  not  combine  against  one  particular  employer. 
The  workmen  of  a  particular  trade  combine  for  their  mutual 
protection  against  all  employers  in  that  trade.  They  form 
organizations,  which  include  in  their  membership  the  em- 
ployees of  many  different  employers.  The  officers  of  the 
organization  undertake  to  interview  the  employers  of  mem- 
bers of  the  union,  and  to  lay  down  to  them  the  terms  of 
employment  upon  which  alone  the  members  of  the  union 
in  their  employ,  or  who  are  about  to  enter  into  their 
employ,  will  work  for  them.  The  walking  delegate 
of  the  union  threatens  to  call  the  employees  from 
their  work  and  to  order  them  to  strike,  unless  the  terms 
which  he  dictates  to  the  employer  are  complied  with. 
And  the  military  discipline  of  the  trade  union  and  other 
labor  organizations,  is  most  strikingly  demonstrated  by  the 
prompt  obedience  which  the  individual  workman  renders  to 
the  walking  delegate's  orders  to  stop  work.  They  drop  their 
tools  as  promptly  as  they  do  every  day  when  they  hear  the 
dinner  bell.  It  is  a  matter  of  no  wonder  that  the  employer 
indignantly  resents  the  presence  in  his  workshops  of  a  per- 
son who  bears  to  him  no  legal  relation  whatever,  and  who 
yet  assumes  to  tell  him  what  kind  of  a  contract  he  shall 
make  with  his  individual  employees,  under  penalty  of 
ordering  a  strike  of  the  employees.  And  when  the  strike 
is  ordered,  the  officers  of  the  labor  organization  conduct  and 

28  §   115 


434  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

manage  it,  and  it  is  with  them  that  the  employer  must 
negotiate  for  a  return  of  his  men  to  work.  We  have,  there- 
fore, in  every  strike,  an  interference  by  an  outsider  with 
the  contractual  relations  of  two  other  persons.  And  the 
main  legal  questions  in  every  labor  dispute,  which,  how- 
ever, are  frequently  very  obscurely  treated  by  the  courts, 
are :  first,  under  what  circumstances  can  a  third  person 
interfere  with  the  contractual  relations  of  two  others? 
And,  secondly,  what  is  the  legal  effect  of  such  an  inter- 
ference when  made,  not  by  one  outsider,  but  by  a  combi- 
nation which  is  composed  partly  of  outsiders  and  partly  of 
one  of  the  parties  to  the  contract?  And,  thirdly,  what 
means  may  be  employed  by  the  outside  combination  to  en- 
force the  compliance  of  the  opposing  party  to  the  contract 
with  the  terms  demanded  by  the  combination?  These 
questions,  when  put  in  this  general  form,  reveal  the  almost 
complete  identity  of  the  legal  rights  of  all  combinations, 
whether  they  are  of  capitalists  or  workmen.  What  would 
be  the  judgment  of  the  courts,  in  a  case  in  which  an  asso- 
ciation of  employers  was  charged  with  having  tried  to  force 
another  employer,  whether  he  was  or  was  not  a  member  of 
the  association,  to  make  certain  labor  contracts  which  the 
association  had  ordered,  and  which  called  for  a  reduction  of 
the  wages  which  the  opposing  employer  was  paying  to  his 
employees,  or  for  an  increase  of  the  hours  of  work?  Would 
the  courts,  on  the  petition  of  one  of  the  workmen  of  the 
latter  employer,  give  judgment  for  damages  to  such  work- 
man against  the  association  of  employers,  if  they  were  to 
employ  any  other  means  than  moral  suasion  to  enforce  on 
all  employers  obedience  to  the  orders  of  the  association? 
No  authority  can  be  cited  in  direct  support  of  either  the 
affirmative  or  negative  answer  to  these  questions,  because 
employers  have  not  so  far  felt  the  necessity  of  combining 
to  protect  themselves  against  the  exactions  of  combinations 
of  workmen.  But  analogy  will  enable  us  to  cite  as  such 
authority  the  law,  heretofore  presented,  which  determined 
§  115 


STRIKES,    CONTINUED,   AND  BOYCOTTS.  435 

how  far  combinations  of  capital  are  lawful  in  their  attempt 
to  control  the  price  to  the  consumer  of  their  several  prod- 
ucts of  manufacture,  or  the  value  of  services  or  goods  to 
those  who  need  them.1  In  the  same  way  that  combinations 
of  capital  have  been  forced  to  incorporate,  as  the  sole  means 
of  escaping  the  hostile  legislation,  so  prevalent  in  this 
country,  so  would  the  labor  combinations  feel  the  need  of 
corporate  powers,  if  the  law  of  conspiracy  was  as  clearly 
laid  down  and  applied  to  them  as  it  is  against  the  combina- 
tions of  capital.  If  the  labor  in  a  particular  trade  for  a 
particular  territory  were  incorporated ;  and  the  employer 
had  to  make  his  contracts  of  hiring  with  the  incorporated 
labor  organization,  no  law  would  be  violated  in  such  a  case. 
The  labor  corporation  would  fix  its  price  and  the  terms  upon 
which  alone  the  employer  could  get  the  required  labor;  in 
the  same  way,  and  as  lawfully  as  that  the  American  Sugar  Re- 
fining Company,  or  any  one  of  the  other  incorporated  trusts, 
determines  the  price  at  which  their  respective  commodities 
shall  be  sold  to  the  consumer.  The  contract  for  labor 
would  in  that  case  be  made,  not  with  the  individual  work- 
men, but  with  the  labor  corporation.  It  is  also  equally 
lawful  for  the  trades-unions,  as  voluntary  associations, 
under  the  law  of  partnerships,  to  make  such  contracts  for 
labor  with  employers.  Only  when  the  labor  contracts  are 
made  by  the  labor  organizations,  instead  of  by  the  individual 
workmen,  can  these  organizations  undertake  the  control  of 
labor  without  being  charged  with  an  interference  with  the 
contractual  relations  of  other  parties.  Inasmuch  as  most, 
if  not  all,  of  the  labor  contracts  are  made  by  the  individual 
workmen;  and  the  labor  organizations,  of  which  they  are 
members,  participate,  if  they  do  so  at  all,  in  the  making  of 
the  labor  contracts,  only  so  far  as  to  have  a  preliminary 
general  understanding  with  the  employer  as  to  the  terms 
and  conditions  of  the  proposed  labor  contracts,  and  do  not 

1  See,  also,  post,  same  section,  cases  of  boycott  of  one  tradesman  by 
associations  of  tradesmen. 

§  115 


436  REGULATION   OF   TRADES    AND   OCCUPATIONS. 

actually  make  the  contracts  for  the  individual  workmen, 
the  union  is  not  in  any  proper  sense  a  party  to  the  labor 
contract.  Any  attempt  of  the  union,  in  such  a  case,  even 
to  enforce  the  preliminary  agreement  as  to  the  terms  and 
conditions  of  the  employment,  constitutes  an  interference 
with  the  performance  of  a  contract,  to  which  it  is  not  a 
party.  The  legal  character  of  most  strikes,  therefore,  de- 
pends upon  the  determination  of  the  right  of  a  single  indi- 
vidual, or  of  a  number  of  individuals  in  combination,  to 
interfere  in  the  contractual  relations  of  other  parties. 

Starting  out  with  the  general  proposition  of  law,  which 
has  been  explained  and  applied  in  preceding  sections,  and 
which  is  still,  at  least  in  part,  the  law  of  this  country,  viz. : 
that  what  one  man  may  do  singly,  a  number  of  men  in 
combination  may  likewise  do,  at  least  in  the  pursuit  of  a 
just  or  lawful  end ;  it  is  necessary  to  first  determine  when 
one  man  alone  may  lawfully  disturb  or  destroy  the  con- 
tractual relations  of  others  by  the  employment  of  lawful 
means.  If  a  single  laborer,  who  is  employed  for  an  in- 
definite period  of  time,  becomes  dissatisfied  with  the  work 
or  with  the  terms  of  employment,  he  has  a  right  to  abandon 
his  situation  at  any  time  and  without  any  notice  whatever  to 
the  employer,  unless  the  law  controlling  such  employment 
requires  such  a  notice  toibe  given.  And  it  would  seem 
that  a  third  person  may  lawfully  advise  him  to  seek  other 
employment,  aid  him  in  procuring  other  work,  and  give 
him  financial  assistance  while  he  is  seeking  another  situa- 
tion. This  is  what  every  considerate  father  does  for  his 
sons,  and  which  is  commonly  done  by  friends  for  each 
other.  There  is  undoubtedly  no  illegality,  either  of  the 
employee,  in  quitting  his  employment  in  such  a  case,  or  of 
the  father  or  friend  in  advising  or  aiding  the  employee  in 
quitting  his  present  position  and  seeking  a  more  profitable 
position.  Authorities  are  not  needed  in  support  of  this 
proposition.  But  if  the  employee  is  working  under  a  con- 
tract of  hiring  for  a  definite  period  of  time,  his  abandon- 
§  115 


STRIKES,    CONTINUED,    AND    BOYCOTTS.  437 

ment  of  his  position  before  the  expiration  of  the  contract- 
ual period  of  service  is  an  unlawful  act,  because  it  is  a 
breach  of  a  contract  for  which  the  employee  can  be  held 
liable  in  damages;  and  in  some  of  the  Southern  States' 
statutes,  the  breach  of  some  of  such  contracts  is  made  a 
criminal  misdemeanor.1 

Is  it  lawful  for  a  third  person  to  advise  and  aid  an 
employee  in  breaking  his  contract,  whether  it  is  law- 
ful or  unlawful  for  the  employee  to  break  it?  It  is 
presumably  true  that  if  the  third  person  was  actuated 
only  by  friendly  interest  in  the  employee,  and  not  by  a 
malicious  desire  to  injure  the  employer,  no  liability 
would  attach  to  the  third  person  for  his  interference  as 
long  as  he  limits  his  interference  to  persuasion,  financial 
aid  and  efforts  to  secure  for  the  employee  a  more  desirable 
position.  At  least  no  authority  to  the  contrary  has  come 
to  my  notice.  But  if  the  third  person  is  actuated  by  a 
malicious  desire  to  injure  the  employer,  and  his  relations 
with  the  employee  are  not  such  as  to  support  the  presump- 
tion that  the  moving  cause  of  his  interference  with  the 
contractual  relation  of  employer  and  employee  was  his 
friendly  interest  in  the  latter,  then  he  is  held  to  be  liable 
in  damages  at  common  law  by  some  of  the  cases  both 
American  and  English.2  But  in  the  United  States,  the  cases 

1  See  ante,  §  104. 

2  Bowen  v.  Hall,  L.  R.  6  Q.  B.  D.  333;  Haskins  v.  Royster,  70  N.  C. 
355;  Jones  v.  Stanley,  76  N.  C.  355;  Doremus  v.  Hennesy,  62  111.  App. 
891.  Lumley  v.  Gye,  2  E.  &  B.  216,  is  held  to  be  the  leading  English  case 
in  support  of  this  proposition.    In  Lally  v.  Cantwell,  40  Mo.  App.  44  and 
Dannenberg  v.  Ashley,  10  Ohio  C.  C.  Rep.  558;  1  O.  C.  D.  40,  it  was  held 
that  a  third  person,  who  maliciously  procured  the  discharge  of  a  servant, 
was  actionable  civilly.    la  Exchange  Tel.  Co.  v.  Gregory,  1  Q.  B.  147,  a 
third  person  was  held  to  be  liable  for  inducing  a  subscriber  of  the  plain- 
tiffs to  violate  his  agreement  not  to  communicate  to  non -subscribers  the 
information  which  was  supplied  to  him  by  the  plaintiffs.    In  Graham  v. 
St.  Charles  Street  Ry.  Co.,  47  La.  Ann.  214,  1656,  the  foreman  of  a  street 
railway  was  held  to  be  liable  to  the  plaintiff,  because  in  hiring  and  dis- 
charging men,  the  foreman  discriminated  against  those  who  traded,  or 

§  115 


438  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

are  more  numerous,  which  deny  the  right  of  action 
against  a  third  person,  who  induces  one  to  break  his  exist- 
ing contract  or  to  refrain  from  entering  into  any  future 
contract.  These  cases  hold  very  generally  that  the  mali- 
cious motive  of  such  a  third  person  does  not  make  his 
interference  an  actionable  wrong,  unless  he  employs  unlaw- 
ful means,  such  as  deceit,  misrepresentations,  intimidation 
or  duress.1 

were  disposed  to  trade,  at  plaintiff's  grocery.  The  malicious  intent  to 
injure  plaintiff's  business  seems  to  have  been  clearly  made  out  in  this 
case,  without  any  other  motive,  which  might  have  made  his  action 
appear  at  all  reasonable.  In  International  &  G.  M.  Ry.  Co.  v.  Green- 
wood, 2  Tex.  Civ.  App.  76,  it  was  held  to  be  unlawful  for  a  railroad  to 
prohibit  its  present  employees  from  patronizing  a  certain  boarding-house, 
«ven  though  the  alleged  motive  was  to  avoid  troublesome  litigation  with 
the  proprietor  of  the  boarding  house  or  interference  with  its  own  regu- 
lations, as  long  as  the  necessity  of  such  regulations  is  not  made  apparent. 
But  the  court  conceded  to  the  railroad  the  right,  in  employing  workmen, 
to  stipulate  with  them  that  they  shall  not  patronize  the  boarding-house 
in  question,  since  it  was  the  undoubted  right  of  the' railroad  to  choose  its 
own  employees,  and  reject  those  who  will  not  comply  with  the  imposed 
conditions  of  employment. 

1  Thus  in  Chambers  v.  Baldwin,  91  Ky.  121,  the  defendant,  in  the  pur- 
suit of  his  desire  to  purchase  certain  goods,  which  a  third  party  had 
already  contracted  to  buy  from  plaintiff,  maliciously,  and  with  the  intent 
to  injure  the  plaintiff,  induced  this  third  party  to  break  his  contract 
with  the  plaintiff.  The  court  held  that  no  actionable  wrong  had  been 
committed  by  the  defendant.  The  same  conclusion  was  reached  by  the 
same  court  in  Bourlier  v.  Macauley,  91  Ey.  135,  where  a  theater  mana- 
ger had  maliciously  induced  an  actress  to  leave  another  theater,  where 
she  was  performing  under  a  contract  of  service.  The  actress  was,  of 
course,  liable,  but  not  the  rival  theater  manager.  In  State  v.  Hoover, 
107  N.  C.  795,  the  court  denied  to  the  plaintiff  any  right  of  action  against 
the  defendant  for  inducing  the  plaintiff's  tenant  to  break  his  contract 
of  lease,  and  abandon  the  farm  which  he  held  under  lease.  The  plain- 
tiff's attorney  endeavored  to  secure  a  judgment  against  the  defendant  on 
the  ground  that  he  had  violated  the  statute  which  prohibited  any  one 
from  enticing  away  a  servant,  holding  that  the  tenant  was  a  serv- 
ant, inasmuch  as  one  of  the  terms  of  the  lease  was  that  he  should  do 
some  work  for  the  plaintiff.  This  contention  the  court  denied.  In 
Glencoe  Sand  &  Gravel  Co.  v.  Hudson  Brothers  Commission  Co.,  138  Mo. 
439,  it  was  held  that  an  action  would  not  lie  against  a  third  person 
for  inducing  another  to  break  his  contract  with  plaintiff,  where  the  con- 
§  115 


STRIKES,    CONTINUED,    AND   BOYCOTTS.  439 

I  have  in  the  two  preceding  notes  given  a  somewhat 
detailed  statement  of  the  cases,  in  which  the  attempt 
was  made  to  hold  a  third  person  liable  for  a  malicious 
interference  with  the  contractual  relations  of  others, 
because  I  believed  it  to  be  necessary  for  the  support  of  my 
future  criticism  of  the  decisions  in  relation  to  strikes  and 
boycotts.  In  studying  these  cases,  one  must  bear  in  mind 
that  some  of  them,  which  recognize  the  right  of  action 
for  a  malicious  interference  by  one  person  in  the  contract- 
ual relations  of  others,  are  cases  of  enticement  of  domestic 
or  menial  servants  from  service,  which  under  English 
statutes,  and  by  statutes  in  some  of  the  United  States,  are 
made  actionable  wrongs.  When  we  eliminate  these  cases, 
we  find  that  the  undoubted  trend  of  judicial  opinion  in  this 
country  is  against  the  recognition  of  any  legal  liability, 
either  civil  or  criminal,  for  any  interference  with  the  con- 
tractual relations  of  others,  unless  unlawful  means  are  em- 
ployed in  effecting  the  interference.  And  the  criticism  of 
the  English  cases  in  the  recent  case  of  Allen  v.  Flood,1 
would  seem  to  prove  a  similar  condition  of  the  law  in 
England. 

tractual  relation  was  not  that  of  master  and  servant.  In  Robinson  ». 
Texas  Pine  Land  Assn.  (Tex.  Civ.  App.  1897),  40  S.  W.  843,  the  defendant 
who  kept  a  truck-store  and  sold  the  same  kind  of  goods  as  the  plaintiff 
did,  and  who  paid  the  employees  in  non -transferable  orders  on  its 
store,  threatened  to  discharge  such  employees  if  they  traded  at  plain- 
tiff's stores,  and  notified  them  that  these  orders  or  pay-checks  would 
not  be  honored  if  they  were  transferred  to  plaintiff.  These  acts  of  the 
defendant  were  held  to  be  lawful,  and  to  give  to  plaintiff  no  action  for 
damages.  A  similar  ruling  was  made  on  a  similar  statement  of  facts  in 
Payne  ».  Western,  etc.,  Ry.  Co.,  13  Lea,  507.  It  was  also  held  to  be 
lawful  for  an  employer  to  prohibit  his  employees  from  renting  plain- 
tiff's houses,  in  Heywood  v.  Tillson,  76  Me.  226.  And  in  Raycroft  v. 
Tayntor,  68  Vt.  219,  where  the  superintendent  of  a  stone  quarry  mali- 
ciously procured  the  discharge  of  an  employee  by  refusing  to  let  the  em- 
ployer take  stone  from  the  quarry  as  long  as  he  retained  the  employee  in 
his  employ,  he  was  held  to  be  guilty  of  no  actionable  wrong  against 
such  employee. 
1  1898,  A.  C.  1,26. 

§  115 


440  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

That  the  employment  of  unlawful  means,  such  as  de- 
ceit, misrepresentation,  intimidation,  or  duress,  in  effecting 
a  successful  interference  with  the  contractual  rights  and 
liberty  of  others,  would  be  an  actionable  wrong,  does  not 
admit  of  any  doubt.1 

We  are  now  prepared  for  the  answer  to  the  question, 
whether  a  combination  or  conspiracy  to  interfere  with  the 
contractual  relations  of  others  is  an  actionable  wrong,  where 
no  unlawful  means  are  employed  to  secure  that  end,  and 
where  the  motive  of  the  interference  is  the  promotion  of 
the  economic  welfare  of  the  parties  interfering.  This  legal 
proposition  is  involved  in  every  case  of  industrial  boycott, 
and  of  every  strike  which  is  conducted  in  whole  or  in  part 
by  persons  who  are  not  striking  employees. 

Assuming  that  the  law  of  conspiracy  has  been  correctly 
stated,  as  including  only  cases  in  which  the  parties  conspire 
to  do  an  unlawful  act,  or  to  do  a  lawf nl  act  by  unlawful 
means,  the  conclusion  is  irresistible  that  no  strike  or  boy- 
cott is  unlawful  or  actionable,  unless  unlawful  means  are 
employed,  such  as  deceit,  misrepresentation,  intimidation, 
or  threats  of  injury. 

It  seems  to  be  settled  that  a  trade  union  or  labor  organ- 
ization is  justified  by  law  in  ordering  a  strike  of  a  part  of 
its  members,  when  their  employer  refuses  to  accept  the 
terms  of  employment  which  are  exacted  by  the  union, 
Cases  and  statutes  which  are  cited  in  the  preceding  section2 
fully  sustain  this  proposition.  But  sympathetic  strikes, 
i.  e.,  strikes  by  other  bodies  of  workmen,  in  order  to  compel 
the  unmanageable  employer  to  come  to  terms,  are  unlaw- 
ful, if  boycotts  are  illegal.  Indeed,  they  are  nothing  more 
than  boycotts. 

1  Benton  v.  Pratt,  2  Wend.  385;  Rice  e.  Manley,  66  N.  Y.  82;  Angle  v, 
Chicago  &  St.  Paul  &c.  Ry.  Co.,  151  U.  S.  1;  Lally  ».  Cantwell,  40  Mo. 
App.  524;  Boyson  v.  Thorn,  98  Cal.  582;  Bourlier  o.  Macauley,  91  Ky, 
135,  140. 

2  §  114. 

§   115 


STRIKES,    CONTINUED,    AND   BOYCOTTS.  441 

An  historical  explanation  of  the  origin  of  the  term  "  boy- 
cott" is  not  out  of  place  in  this  connection,  and  it  will 
serve  to  explain  the  fundamental  reasoning  of  the  cases  on 
boycotting.  The  term,  as  describing  a  method  of  industrial 
warfare,  arose  during  the  Irish  land  troubles  of  the  early 
eighties,  in  consequence  of  the  manifesto  of  the  Irish  land 
league,  that  the  payment  of  rents  would  be  refused,  if 
they  were  not  reduced  to  what  were  claimed  by  the  league 
to  be  reasonable  amounts.  During  the  disturbances  which 
followed  the  attempt  to  give  effect  to  the  manifesto,  the 
peasants  came  into  conflict  with  a  landlord  of  the  name  of 
Boycott.  He  had  been  known  to  be  especially  severe  in 
making  terms  with  his  tenants  ;  and  when  he  refused  to 
accede  to  the  demands  of  the  league  and  evicted  his  ten- 
ants for  refusing  to  pay  rent,  almost  the  entire  population 
of  that  community  combined  to  force  him  to  make  terms 
with  the  league.  The  bakers,  butchers  and  other  trades- 
men refused  to  have  dealings  with  him.  He  could  buy 
nothing  wherewith  to  feed  his  family  ;  all  his  domestic  ser- 
vants left  him,  and  he  could  get  none  to  take  their  places. 
He  and  his  family  were  left  alone  in  the  midst  of  a  more 
or  less  populous  community,  shunned  as  if  they  were 
lepers  or  criminals.  Existence  under  such  circumstances 
became  unbearable,  and  he  was  forced  to  yield.1 

Now,  in  the  original  boycott  cases,  as  it  has  been  in 
almost  every  other  extensive  case  since  then,  both  in 
England  and  America,  the  combination  or  conspiracy  has 
been  attended  with  violence  and  injury  to,  or  trespasses 
upon  the  property  and  personal  rights  of  those  against 
whom  the  boycott  was  directed.  In  the  celebrated  case 
of  the  Queen  v.  Parnell,  just  cited,  forcible  possession 
or  retention  of  the  farms  was  a  part  of  their  plan  of 
campaign,  while  the  tenants  refused  to  perform  their 
own  obligations  under  the  leases.  These  boycotts  were 

1  See  Reg.  ».  Parnell,  14  Cox  0.  C.  608. 

§  115 


442     REGULATION  OF  TRADES  AND  OCCUPATIONS. 

therefore  conspiracies  to  do  unlawful  acts.  But  where 
the  boycott  is  unaccompanied  by  infringements  of  the 
criminal  law,  as  it  is  enforced  against  a  single  individ- 
ual, or  by  clear  trespasses  upon  the  rights  of  others,  it 
may  be  defined  as  a  combination  of  persons  to  force  one 
to  terms  by  abstaining  from  having  business  and  other 
relations  with  him.  And  in  order  that  the  boycott 
may  be  made  more  effective  in  its  operations  against 
one  person,  the  participants  in  the  combination 
usually  threaten  to  boycott  all  persons  who  may 
dare  to  have  relations  of  any  kind  with  the  objec- 
tionable person  or  persons.  Such  a  combination  dif- 
fers in  legal  character  from  the  capitalistic  combinations 
only  in  the  degree  of  danger  that  the  procedures  of  the 
former  will  be  accompanied  by  violence  and  disorder  and 
by  distinct  trespasses  upon  the  rights  of  others.  Both 
kinds  of  combinations  are  engaged  in  an  industrial  war, 
and  both  are  actuated  by  the  same  motive,  viz. :  the  pro- 
curement of  better  prices  for  the  commodities,  which  they 
have  to  sell ;  the  commodity  of  the  workmen  being  their 
labor.  So  far  as  the  managers  of  a  boycott  are  able  to 
keep  themselves  and  their  co-conspirators  from  interfering 
with  the  legal  rights  of  persons  or  of  property  of  those 
who  are  boycotted,  their  actions  in  combination  are  actions 
which  are  thoroughly  lawful,  if  they  were  done  by  individ- 
uals acting  alone.  If  the  boycott  is  unlawful,  it  must  be 
so,  only  because  the  individuals  are  not  allowed  to  do  in 
concert  what  they  are  allowed  to  do  singly.  In  previous 
sections  of  this  chapter  1  it  has  been  declared,  with  a  suffi- 
ciency of  authority  in  support  of  the  general  proposition, 
to  be  the  constitutional  right  of  every  American  citizen  to 
refuse  to  have  business  and  social  relations  with  any  one 
who  may  displease  him,  and  his  motives  for  abstaining 
from  associating  with  the  objectionable  person  cannot  be 

i  §§  107,  108. 

§  115 


STRIKES,    CONTINUED,    AND   BOYCOTTS.  443 

inquired  into.  And  the  cases,  heretofore  explained  in  the 
present  section,  demonstrate  that  the  law  in  most  of  the 
United  States  does  not  recognize  even  a  malicious  interfer- 
ence with  the  contractual  relations  of  others,  when  done  by 
a  single  individual.  It  is  conceded  that  conspiracy  differs 
from  other  wrongful  acts  in  that  the  malicious  intent  to 
harm  another,  by  doing  acts  in  themselves  lawful,  may 
make  proof  of  an  actionable  conspiracy.  But,  in  its  appli- 
cation to  the  combinations  of  capitalists,  it  has  been  clearly 
set  forth  in  preceding  sections  1  that  a  willful  intent  to  do 
injury  to  others,  does  not  make  acts  in  themselves  lawful, 
an  unlawful  conspiracy,  when  done  in  concert,  where  they 
are  prompted  by  a  just  purpose,  for  example,  the  promo- 
tion of  the  material  welfare  of  the  actors.  The  cases,  gen- 
erally, sustain  the  right  of  labor  combinations  to  order  a 
strike  of  its  members,  when  the  employer  refuses  to  accede 
to  the  terms  of  employment  which  are  demanded  of  them.2 
But  the  cases,  which  will  be  fully  stated  subsequently,  in 
the  main  deny  that  the  industrial  purpose,  viz.,  the  pro- 
motion of  the  material  welfare  of  the  laboring  class,  justi- 
fies the  conspiracy  which  is  known  as  the  boycott,  even 
when  nothing  has  been  done  by  the  boycotters,  which 
would  be  unlawful  as  the  act  of  a  solitary  individual.  So 
far  as  these  cases  lay  this  down  as  the  law  relating  to  boy- 
cotting, they  establish  a  different  rule  of  conspiracy  for  the 
control  of  the  actions  of  labor  combinations,  than  what  is 
applied  to  capitalistic  combinations.  Such  a  discrimination 
is  clearly  unconstitutional,  in  that  it  refuses  to  one  class  of 
citizens  the  equal  protection  of  the  laws,  by  establishing 
for  the  control  of  the  actions  of  that  class  a  more  stringent 
law  of  actionable  conspiracy  than  what  is  enforced  against 
others. 

This  criticism  must,  of  course,  be  considered,  as  if  the 
anti-trust  laws  had  not  been  enacted,  and  that  monopolistic 

1  §§  108,  110-112.  •  See  ante,  §  114. 

§  Il5 


444  REGULATION    OF  TRADES   AND   OCCUPATIONS. 

combinations  of  capital  had  not  been  made  unlawful  by 
these  statutes.  With  these  statutes  in  force  against  cap- 
italistic combinations,  and  not  equally  enforced  against 
labor  combinations,  as  has  been  explained  in  the  preceding 
section ;  the  law  of  conspiracy,  as  it  has  been  developed 
and  applied  against  labor  organizations  and  workmen  in  the 
boycott  cases  may  be  reasonably  considered  as  a  rough 
attempt  at  securing  to  all  the  equal  protection  of  the  laws. 
And  I  do  not  desire  to  be  understood  in  my  criticism  as 
intending  to  do  more  than  to  secure  as  far  as  possible  a 
rigid  adherence  to  the  individualistic  principle  of  the  liberty 
of  all,  in  the  industral  warfare, —  which  is  now  being 
waged,  year  by  year  with  greater  intensity, —  to  do  any- 
thing which  does  not  constitute  a  trespass  upon  the  rights 
of  others,  as  long  as  the  motive  of  the  act,  which  may  be 
injurious  to  others,  is  the  promotion  of  the  material  wel- 
fare of  the  actors.  It  may  be  constitutional  to  prohibit 
all  combinations  in  restraint  of  trade,  and  make  the  form- 
ing of  one  an  actionable  wrong,  even  though  the  motive  be 
reasonable,  as  it  has  been  held  by  the  Supreme  Court  of 
the  United  States  in  the  case  of  the  Joint  Traffic  Associa- 
tion 1  and  by  the  New  York  Court  of  Appeals  in  another 
case ;  2  but  the  nearly  equal  division  of  the  former  court  on 
that  question  would  incline  one  to  consider  it  as  still  unsettled. 
{But  it  certainly  cannot  be  declared  to  be  in  conformity 
with  the  constitutional  requirement  of  equality  of  all  men 
before  the  law,  to  prohibit  all  combinations  of  capital  or 
of  employers,  and  to  permit  combinations  of  labor.^  If  it 
is  constitutional  to  punish  laborers,  who  combine  for  their 
material  success  in  the  industrial  relations  of  life,  if 
in  their  recognition  of  the  solidarity  of  the  interests  of  all 
workmen,  they  undertake  to  secure  a  combination  of  all  of 
them,  in  separate  trade-unions,  according  to  trades,  or  in 

1  U.  S,  v.  Joint  Traffic  Association,  171  U.  S.  605. 
«  People  v.  Sheldon,  139  N.  Y.261. 

§115 


STRIKES,    CONTINUED,    AND   BOYCOTTS.  445 

one  large  association  of  labor,  including  all  the  workmen 
in  all  the  related  trades ;  and,  in  order  to  force  all  the 
workmen  to  co-operate  with  them  by  joining  the  labor 
union,  and  subjecting  themselves  to  the  rules  and  regula- 
tions of  the  union,  they  forbid  union  men  to  work  where 
non-union  men  are  employed  ;  then  surely  it  is  not  consti- 
tutional to  permit  a  combination  of  traders  to  force  to  the 
wall,  by  the  use  of  their  economic  power,  a  trader  who 
does  not  come  within  the  combination.  The  same  purpose 
actuates  the  members  of  both  kinds  of  combinations  and 
the  acts  of  both  are  either  lawful  or  unlawful,  according  as  it  is 
finally  determined,  whether  voluntary,  i.  e.  unincoporated, 
industrial  combinations  may  or  may  not  be  suppressed, 
without  violating  the  constitutionally  guaranteed  liberty  of 
contract. 

In  a  number  of  the  States,  statutes  have  been  enacted, 
which  prohibit  boycotting  expressly,  and,  in  some  cases, 
very  drastically.  In  those  States,  boycotting  is  a  statutory 
offense,  and  need  not  be  proven  to  be  a  common  law  con- 
spiracy. An  enumeration  of  the  States,  in  which  such 
statutes  are  to  be  found,  is  not  necessary  to  the  present  in- 
quiry. They  all  substantially  prohibit  boycotting,  as  it  has 
been  defined  above.  They  make  any  interference  with  the 
contractual  relations  of  others  by  a  combination  or  organi- 
zation an  actionable  wrong,  it  matters  not  what  was  the 
motive,  or  what  the  means  employed.  A  statement  of  the 
cases  on  boycotting  will  now  be  given. 

The  preceding  discussion  makes  it  evident  that  a  boycott, 
which  is  accompanied  by  any  kind  of  violence  and  the  ob- 
struction of  the  prosecution  of  the  business  of  the  person 
who  is  boycotted,  would  undoubtedly  subject  the  individuals 
engaged  therein  to  le^al  liability.  For  such  acts  are  un- 
lawful, whether  they  are  committed  by  one  or  by  many.1  Of 

1  For  cases,  involving  more  or  less  of  these  reprehensible  and  un- 
lawful trespasses  upon  the  rights  of  others,  see  Pettibone  v.  U.  S  ,  148 
U.  S.  197;  Reginaa.  Druitt,  10  Cox  C.  C.  592;  U.  S.  v.  Workingmen's 

§  H5 


446  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

these  cases,  that  of  the  People  v.  Wilzig,  will  serve  best  as 
an  illustration.  In  order  principally  to  enforce  the  em- 
ployment of  union  musicians  and  waiters  and  the  dismissal 
of  non-union  men,  at  the  well-known  saloon  and  music  hall 
of  Mr.  Theiss  on  East  Fourteenth  street  in  New  York  City, 
the  Knights  of  Labor  and  Central  Labor  Union,  ordered  a 
boycott  of  the  place,  and  in  consequence  a  body  of  men 
walked  up  and  down  in  front  of  the  saloon,  with  placards 
and  signs,  announcing  that  Theiss  was  an  enemy  of  union 
labor  and  warning  everybody  to  stay  away  from  his  saloon. 
These  placards  and  notices  were  signed  by  "  The  Boycott 
Committee  of  the  Central  Labor  Union."  For  fifteen 
days  a  crowd  of  over  five  hundred  people  obstructed 
the  ingress  and  egress  to  this  saloon.  The  boy  cotters 
succeeded  finally  in  making  Theiss  yield  to  their  demands 
and  to  pay  them  a  large  sum  of  money  to  cover  the  ex- 
penses of  the  boycott.  It  is  manifest  that  such  disorder 
and  extortion  are  in  violation  of  the  law,  irrespective  of  the 
element  of  combination,  and  the  defendant  was  justly  pun- 
ished. These  union  men  were  clearly  undertaking,  by  un- 
lawful means,  to  compel  Theiss'  submission  to  their  de- 
mands. Somewhat  akin  to  actual  violence  or  disorder,  or 
obstruction  of  the  business  of  the  objectionable  person,  are 
the  cases  in  which  in  the  place  of  positive  acts  of  that  un- 
lawful kind,  are  threats  of  violence  and  of  obstruction  to 
the  prosecution  of  one's  business.1  In  Murdock  v.  Walker, 
the  court  issued  an  injunction  against  employees  who  had 
been  discharged,  restraining  them  "  from  gathering  about 

Amalgamated  Council,  54  Fed.  994 ;  Hamilton-Brown  Shoe  Co.  v.  Saxey, 
131  Mo.  212;  Mackall  v.  Ratchford,  82  Fed.  41;  Consolidated  Steel  &  Wire 
Co.  v.  Murray,  80  Fed.  811;  Wick  China  Co.  v.  Brown,  164  Pa.  St.  449; 
O'Neill  v.  Behanna,  182  Pa.  St.  236;  People  v.  Wilzig,  4  N.  Y.  Grim. 
Rep.  403. 

1  See  Old  Dominion  S.  S.  Co.  v.  McKenna,  30  Fed.  R.  48;  People  v. 
Kostka,  4  N.  Y.  Cr.  Rep.  429;  Brace  v.  Evans,  3  R.  &  Corp.  L.  J.  561; 
Murdock  v.  Walker,  152  Pa.  St.  595;  O'Neill  v.  Behanna,  182  Pa.  St.  236; 
Sherry  v.  Perkins,  147  Mass.  212;  Vegelahn  v.  Guntner,  167  Mass.  92. 
§  115 


STRIKES,    CONTINUED,    AND   BOYCOTTS.  447 

the  plaintiff's  place  of  business,  and  from  following  his  em- 
ployees to  and  from  work,  and  gathering  about  their  board- 
ing places,  and  from  any  and  all  manner  of  threats,  intimida- 
tion, ridicule  and  nuisance."  In  the  somewhat  celebrated 
case  of  Sherry  v.  Perkins,  in  the  course  of  a  strike,  a  laster's 
union,  composed  in  part  of  the  striking  employees,  paraded 
up  and  down  in  front  of  the  plaintiff's  works,  carrying 
banners  with  the  announcement:  "  Lasters  are  requested 
to  keep  away  from  P.  P.  Sherry's.  Per  order  L.  P.  U." 
The  presence  of  a  large  number  of  striking  workmen, 
carrying  such  a  banner,  was  undoubtedly  such  a  show  of 
force  as  to  justify  the  court  in  declaring  it  to  be  the  equiv- 
alent of  a  threat  of  physical  violence,  which  was  sufficient 
to  prevent  other  workmen  from  applying  for  the  places 
which  had  been  vacated  by  the  strikers.  It  was  therefore 
intimidation  lo  the  non-union  workmen  and  obstruction  to 
the  prosecution  of  the  plaintiff's  business.  Such  a  show  of 
force  in  such  a  cause  would  have  been  just  as  unlawful  if 
done  by  one  individual.  The  parading  of  one  powerful  giant, 
carrying  such  a  banner  because  he  had  been  discharged 
from  the  plaintiff's  employ,  might  have  had  the  effect  of 
obstructing  the  plaintiff's  business,  and  would  have  brought 
the  giant  within  the  clutches  of  the  law.  In  Vegelahn  v. 
Guntner,  a  divided  court  held  that  a  patrol  of  two  men  in 
front  of  plaintiff's  business,  who  were  giving  to  all  work- 
men notice  of  the  strike  and  persuading  them  not  to  enter 
into  the  plaintiff's  employ,  was  an  unlawful  intimida- 
tion. The  court  said:  "Intimidation  is  not  limited  to 
threats  of  violence  or  of  physical  injury  to  person  or 
property.  It  has  a  broader  signification  and  there  also 
may  be  a  moral  intimidation,  like  those  which  were  found 
to  exist  in  Sherry  v.  Perkins."  The  dissenting  judges, 
Mr.  Chief  Justice  Field  and  Mr.  Justice  Holmes,  held  that 
the  patrol  of  two  men  carried  no  threat  of  violence,  and 
simple  persuasion  not  to  enter  into  plaintiff's  employ  was 

§  115 


448  REGULATION    OF   TRADES    AND   OCCUPATIONS. 

a  lawful  means  of  carrying  on  the  industrial  competition 
between  the  employer  and  employee.  But  in  that  opinion, 
Mr.  Justice  Holmes  holds  that  combined  persuasion  may  be 
actionable.  He  says  :  "  I  agree,  whatever  may  be  the  law 
in  the  case  of  a  single  defendant  (Rice  v.  Albee,  164  Mass. 
88),  that  when  a  plaintiff  proves  that  several  persons  have 
conspired  to  injure  his  business,  and  have  done  acts  pro- 
ducing that  effect,  he  shows  temporal  damage  and  a  cause 
of  action,  unless  the  facts  disclose,  or  the  defendant  proves, 
some  ground  of  excuse  or  justification.  And  I  take  it  to 
be  settled,  and  rightly  settled,  that  doing  that  damage  by 
combined  persuasion  is  actionable,  as  well  as  doing  it  by 
falsehood  or  by  force."  He  evidently  accepts  the  defini- 
tion of  conspiracy  of  the  English  courts,  as  laid  down  in 
Mogul  S.  S.  Co.  v.  McGregor.1 

The  phrase,  "  boycott,"  on  account  of  the  common 
accompaniment  of  violence,  has  come  to  mean,  in  the 
minds  of  many,  the  infliction  of  bodily  injury,  the  forcible 
obstruction  of  business,  or  destruction  of  property,  or 
one  or  more  of  these  unlawful  acts.  Hence  in  Brace 
v.  Evans,  it  was  declared  that  **  the  use  of  the  word 
boycott  is  in  itself  a  threat."  In  that  case,  the  strik- 
ers, carrying  placards  with  the  words,  "  Boycott  Brace 
Brothers,"  followed  the  plaintiffs'  wagons,  and,  having 
thus  ascertained  plaintiffs'  customers,  visited  them  and 
endeavored  to  persuade  them  from  having  business  with 
i he  plaintiffs.  This  case  corresponds  in  legal  character  with 
that  of  Sherry  v.  Perkins. 

In  another  class  of  cases,  the  strikers  indulge  in  the  use 
of  abusive  epithets  towards  those  who  seek  business  rela- 
tions with  the  boycotted  person,  or  publish  and  distribute 
cards  and  circulars,  notifying  everyone  of  the  boycott,  and 
requesting  all  friends  of  union  labor  to  abstain  from  dealing 
with  the  person  boycotted.  These  actions  have  been  re- 

1  L.  R.  23  Q.  B.  D.  598.     See  ante,  §§  110,  114. 
§  H5 


STRIKES,    CONTINUED,    AND    BOYCOTTS.  449 

peatedly  held  to  be  unlawful  actions,  when  it  is  the  work 
of  an  organization.1 

The  case  of  Barr  v.  Essex  Trades  Council  displays 
in  a  most  striking  form  the  great  possibilities  of  the  boycott, 
as  a  weapon  of  industrial  warfare,  when  the  boycotters  are 
both  numerous  and  united.  A  more  or  less  detailed  state- 
ment of  the  facts  of  this  case  will  prove  profitable.  The  suit 
for  injunction  was  brought  by  the  proprietor  and  publisher 
of  a  newspaper  in  Newark,  New  Jersey,  against  eighteen 
labor  unions  which  were  associated  together,  under  the  con- 
trol of  a  central  body,  which  was  known  as  the  Essex 
Trades  Council,  and  which  was  composed  of  delegates  from 
the  component  labor  unions.  If  the  members  of  any  one 
of  these  unions  had  a  labor  dispute  with  any  employer,  and 
the  employer  refused  to  accede  to  the  demands  of  the  labor 
union,  a  report  of  the  dispute  was  made  to  the  council,  and 
the  council  made  it  the  common  cause  of  all  the  associated 
unions.  The  council  also  issued  cards,  to  be  displayed  in 
the  shop  windows  of  all  dealers,  who  were  reported  as 
friends  of  organized  labor,  announcing  that  fact,  and  rec- 
ommending the  dealer  to  the  patronage  of  all  union  work- 
men. In  order  to  secure  the  patronage  of  the  unions,  the 
tradesman  had  to  enter  into  an  agreement  with  the  council 
that  he  would  keep  for  sale,  as  far  as  possible,  only  those 
goods  which  were  declared  by  one  of  the  unions  to  be 
"  fair,"  and  he  entered  into  a  similar  agreement  not  to  en- 
gage laborers  who  were  not  approved  by  the  unions.  Those 
dealers,  who  were  not  favorably  reported  upon  by  a  labor 
union  within  two  months,  were  at  once  placed  under  the 
condemnation  of  the  council,  which  practically  amounted 
to  a  boycott.  To  enable  the  control  of  the  tradesmen  to 

1  State  v.  Stewart,  59  Vt.  273;  State  v.  Glidden,  55  Conn.  46;  Casey  v. 
Cincinnati  Typo.  Union,  45  Fed.  135;  Moores  &  Co.  v.  Bricklayers'  Union 
(Cincinnati  Sup.  Ct.),  23  Wkly.  L.  B.  (0.)  48;  Barr  v.  Essex  Trades  Coun- 
cil, 53  N.  J.  Eq.  101;  Old  Dominion  S.  S.  Co.  v.  McKenna,  30  Fed.  48; 
Lucke  v.  Clothing  Cutters  &  Trimmers'  Assembly,  77  Md.  896. 

29  §  115 


450  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

become  more  effective,  the  council  published  in  pamphlet 
form  what  they  called  ««  The  Fair  List  of  Newark,  N.  J.," 
which  contained  the  names  of  all  those  who  were  approved 
of  by  the  council  as  worthy  of  the  patronage  of  workmen. 
In  that  list  were  to  be  found  the  names  of  business  and 
professional  men,  covering  almost  every  business  and  pro- 
fession. Outside  of  the  original  Irish  combination  against 
Captain  Boycott,  there  probably  has  never  been  a  more  ex- 
tensive and  more  carefully  thought-out  plan  for  the  control 
of  those  with  whom  laboring  men  have  to  deal.  If  such 
an  union  of  workmen  in  a  city  the  size  of  Newark  could 
have  relied  upon  the  loyalty  of  all  its  members,  and 
upon  the  intelligence,  administrative  ability  and  fair- 
mindedness  of  its  officers,  the  ordinary  and  usual 
economic  superiority  of  capitalists  and  employers  in  the 
industrial  strife  would  have  been  removed.  Apart  from  the 
agreement,  which  they  exacted  from  tradesmen  whom  the 
council  favored,  not  to  purchase  goods  or  employ  labor, 
which  were  under  the  ban  of  the  council,  it  would  be  diffi- 
cult to  find  in  this  statement  any  element,  which  is  prop- 
erly characterized  as  an  actionable  wrong.  And  yet  it  was 
a  boycott  of  all  those,  who  did  not  comply  with  the  demands 
of  the  Trades  Council. 

The  plaintiff  had  fallen  under  the  condemnation  of  the 
typographical  union,  which  belonged  to  the  Trades  Council, 
because  he  purchased  "  plate  matter"  in  New  York  for  use 
in  the  printing  of  his  paper,  in  opposition  to  the  wishes  of 
the  union,  to  which  all  his  employees  belonged.  He  re- 
fused to  comply  with  the  demands  of  the  union  to  give  up 
the  use  of  this  "  plate  matter,"  which  were  stereotype 
plates;  whereupon  the  union  reported  the  dispute  to  the 
council,  and  the  latter  body  declared  a  boycott  against  the 
newspaper,  and  issued  and  distributed  throughout  the  city 
of  Newark,  a  circular  which  read  as  follows:  "Friends, 
one  and  all !  Leave  this  council-boycotting  Newark  Times 
alone.  Cease  buying  it!  Cease  handling  it!  Cease  ad- 
§  115 


STRIKES,    CONTINUED,    AND    BOYCOTTS.  451 

vertising  in  it!  Keep  the  money  of  fair  men  moving  only 
among  fair  men.  Boycott  the  boy  cotter  of  organized  fair 
labor."  The  court  held  this  to  be  an  unlawful  combina- 
tion, and  that,  although  there  was  neither  disorder,  vio- 
lence, nor  threats  of  violence,  the  intimidation  or  duress  of 
the  plaintiff,  caused  by  his  fear  of  the  loss  of  his  business, 
made  the  boycott  an  actionable  conspiracy. 

Similar  conclusions  were  reached  in  a  number  of  cases 
where  there  was  no  other  wrongful  element  than  the  threat 
of  injury  to  the  business  of  another,  if  he  did  not  break  off 
business  relations  with  some  other  person  who  had  incurred 
the  displeasure  or  hostility  of  the  striking  workmen.1  The 
sympathetic  strikes  of  the  employees  of  one  railroad,  be- 
cause they  handle  the  freight  or  the  cars  of  another  rail- 
roads, whose  employees  are  on  a  strike,  are  of  the  same 
character  and  they  have  all  been  held  to  be  actionable 
conspiracies.2 

Two  recent  cases  illustrate  in  a  very  interesting  way 
the  sweeping  character  of  the  American  cases  on  this  sub- 
ject. In  one  case  3  a  liverymen's  association  prohibited  its 
members  from  doing  business  with  any  person  who  did 
not  patronize  its  members  exclusively.  The  association 
was  held  to  have  violated  the  law  of  conspiracy  as  well  as 
the  law  argainst  monopolies.4 

The  greater  number  of  actionable  conspiracies,  assuming 
more  or  less  the  form  of  the  boycott,  and  all  of  them  con- 
stituting interferences  with  the  contractual  relations  of 
other  parties,  involve  the  antagonism  of  labor  unions  to 

1  Crump  v.  Com.,  84  Va.  927;  Hopkins  v.  Oxley  Stave  Co.,  83  Fed.  912. 

2  Thomas  ».  Cincinnati,  N.  O.  &  T.  Ry.  Co.,  62  Fed.  803;  United  States 
v.  Cassidy,  67  Fed.  698;  In  re  Charge  to  Grand  Jury,  62  Fed.  828;  United 
States  v.  Debs,  63  Fed.  436;  Toledo  A.  A.  &  N.  M.  By.  Co.  ».  Pennsyl- 
vania Co.,  54  Fed.  730;  Clune  ».  United  States,  159  U.  S.  590. 

8  Gatzow  v.  Buening  (Wis.  1900),  81  N.  W.  1003. 

4  See,  also,  on  the  same  lines,  except  that  it  was  a  boycott,  directed 
against  a  particular  person.  Ertzw.  Produce  Exchange  Co.  (Minn.  1900), 
81  N.W.  737. 

§  115 


452  REGULATION   OF   TRADES    AND   OCCUPATIONS. 

the  employment  of  non-union  men,  and  the  procurement 
of  their  discharge  or  the  prevention  of  their  employment, 
by  threats  of  a  withdrawal  of  the  union  men  from  the 
same  employment.  With  the  exception  of  a  few  earlier 
cases,1  and  one  late  case,2  which  are  to  the  contrary,  the 
American  cases  very  generally  hold  all  such  combinations 
against  non-union  men  to  be  actionable  conspiracies,  even 
though  no  other  means  be  employed  than  the  threat  of 
striking  on  the  part  of  the  union  men,  if  non-union  men 
are  employed  ;  and  even  where  the  only  overt  act  is  an  agree- 
ment of  the  employer  with  the  union  that  he  will  employ 
only  union  men.3  The  case  of  Curran  v.  Gale  is  a  very 
clear  enunciation  of  the  doctrine  that  it  is  an  actionable 
conspiracy  for  an  employer  and  a  labor  union  to  enter 
into  an  agreement  that  none  but  union  men  shall  be  em- 
ployed by  the  former;  or  if  a  non-union  man  should  be 
employed,  he  shall  be  discharged,  if  he  does  not  within 
four  weeks  become  a  member  of  the  union.  The  court 
held  that  the  combination  against  the  non-union  man  was 
unlawful  without  any  specific  agreement  with  the  employer; 
and  that  the  agreement  was  itself  unlawful,  and  did  not 
diminish  the  illegality  of  the  action  of  the  union  is  secur- 
ing the  dismissal  of  the  non-union  man,  because  he  did  not 
join  the  union.  The  court  says,  in  part:  *  — 

"  Public  policy  and  the  interests  of  society  favor  the 

1  Com.  v.  Hunt,  4  Met.  Ill;  Bowen  v.  Matheson,  14  Allen,  499. 

2  Longshore  Printing  Co.  v.  Howell,  26  Oreg.  527. 

3  Old  Dominion  S.  S.  Co.  v.  McKenna,  30  Fed.  48;  Casey  v.  Cincinnati 
Typo.  Union,  45  Fed.  135;  Lucke  v.  Clothing  Cutters'  and  Trimmers' 
Assembly,  77  Md.  396;  State  v.  Dyer,  67  Vt.  690;  Callan  ».   Wilson,  127 
U.  S.  540;  Curran  ».  Gale,  22  N.  Y.   S.  826;  2  Misc.   Rep.  553;  s.  c.  152 
N.  Y.  33.    There  are  many  other  cases,  in  which  attempts  have  been  made 
to  prevent  non-union  workmen  from  obtaining  employment,  or  retain- 
ing their  positions,  but  they  are  complicated  by  threats  and  fears  of  phys- 
ical violence,  opprobrious  epithets,  •  and  by  annoying  pursuit  by  the 
union  men.    These  cases  have  already  been  cited  in  connection  with  a 
statement  of  the  law  in  regard  to   the  use  of  unlawful  means. 

4  Curran  v.  Gale,  152  N.  Y.  33. 

§  115 


STRIKES,    CONTINUED,   AND   BOYCOTTS.  453 

almost  freedom  in  the  citizen  to  pursue  his  lawful  trade  or 
calling,  and  if  the  purpose  of  an  organization  or  combina- 
tion of  workingmen  be  to  hamper  or  to  restrict,  that 
freedom,  and  through  contracts  or  arrangements  with 
employers,  to  coerce  other  workingmen  to  become  mem- 
bers of  the  organization  and  to  come  under  its  rules  and 
conditions  under  the  penalty  of  the  loss  of  their  positions, 
and  of  deprivation  of  employment,  then  that  purpose 
seems  clearly  unlawful  and  militates  against  the  spirit  of 
our  government  and  the  nature  of  our  institutions.  The 
effectuation  of  such  a  purpose  would  conflict  with  that 
principle  of  public  policy  which  prohibits  monopolies  and 
exclusive  privileges.  It  would  tend  to  deprive  the  public 
of  the  services  of  men  in  useful  employments  and  capaci- 
ties. It  would,  to  use  the  language  of  Mr.  Justice  Barrett 
in  People  ex  rel.  Gill  v.  Smith  (5  N.  Y.  Cr.  Rep.  513), 
*  impoverish  and  crush  a  citizen  for  no  reason  connected  in 
the  slightest  degree  with  the  advancement  of  wages  or  the 
maintenance  of  the  rate.'  Every  citizen  is  deeply  inter- 
ested in  the  strict  maintenance  of  the  constitutional  right 
freely  to  pursue  a  lawful  avocation,  under  conditions  equal 
as  to  all,  and  to  enjoy  the  fruits  of  his  labor  without  the 
imposition  of  any  conditions  not  required  for  the  general 
welfare  of  the  community.  The  candid  mind  should 
shrink  from  the  results  of  the  operation  of  the  principle 
contended  for  here;  for  there  would  certainly  be  a  com- 
pulsion, or  a  fettering,  of  the  individual,  glaringly  at 
variance  with  that  freedom  in  the  pursuit  of  happiness, 
which  is  believed  to  be  guaranteed  to  all  by  the  provisions 
of  the  fundamental  law  of  the  State." 

A  number  of  English  cases  have  maintained  the  same 
position  as  to  the  illegality  of  interference  by  union  men 
with  the  employment  of  non-union  men.1  But  so  far  as 

1  Reg.  w.  Hewitt,  6  Cox  C.  C.  162;  Rex  u.  Bykerdike,  1  Moody  &  R. 
179;  Perham's  Case,  5  H.  &  M.  30;  Shelbourne  v.  Oliver,  13  L.  T.  R. 
[N.  8.]  630. 

§   H5 


454     REGULATION  OF  TRADES  AND  OCCUPATIONS. 

these  cases  may  be  taken  as  holding  such  acts  of  hostility 
to  non-union  men  to  be  actual  conspiracies  at  the  common 
law,  and  not  merely  actionable  under  the  different  English 
statutes,  which  have  from  time  to  time  imposed  special 
restrictions  upon  labor  combinations,  they  are  undoubtedly 
overruled  by  the  recent  case  of  Allen  v.  Flood.1  The  facts 
of  this  case  were  these:  Allen,  as  the  delegate  of  a  union 
of  iron-workers,  represented  to  the  Glengall  Iron  Company 
that  if  they  did  not  discharge  two  of  their  workmen,  Flood 
and  Taylor,  all  the  iron-workers  would  leave  their  employ ; 
because  the  two  workmen,  who  were  wood-workers,  had 
on  other  jobs  done  iron  work,  which  was  against  the  inter- 
est of  the  iron-workers.  The  Glengall  Iron  Company, 
under  the  intimidation  of  the  fear  that  the  iron-workers 
would  leave  the  company  if  these  workmen  were  retained 
in  their  employ,  dismissed  Flood  and  Taylor.  The  judg- 
ment was  rendered  in  the  trial  court  against  Allen,  but  it 
was  reversed  in  the  House  of  Lords  by  a  divided  court. 
The  prevailing  judgment  was  that  Allen  had  not  been 
guilty  of  any  actionable  wrong  in  thus  securing  the  dismis- 
sal of  Flood  and  Taylor,  inasmuch  as  there  was  no  proof 
of  violence,  or  threats,  or  other  physical  intimidation  being 
employed  to  secure  such  dismissal.  The  court  relied  upon 
the  prior  case  of  Mogul  S.  S.  Co.  v.  Macgregor,  which  has 
been  so  fully  discussed  in  a  preceding  section.2 

In  rendering  judgment  for  the  appellant  and  reversing 
the  judgment  below  in  favor  of  Flood  and  Taylor,  Judge 
Herschell  said  in  part: 3  — 

"  It  is  said  that  the  statement  that  the  defendant  would 
call  the  men  out,  if  made,  was  a  threat.  It  is  this  aspect 
of  the  case  which  has  obviously  greatly  influenced  some  of 
the  learned  judges.  Hawkins,  J.,  says  that  the  defendant, 
withoutexcuseor  justification,*  willfully,  unlawfully, unjustly 

1  (1898)  A.  C.  1.    To  the  same  effect,  Connor  v.  Kent,  2  Q.  B.  545. 
8  See  ante,  §§  110,  114. 
8  Allen  v.  Flood,  1898,  A.  C.  1, 128. 
§  115 


STRIKES,    CONTINUED,    AND   BOYCOTTS.  455 

and  tyrannically ,  invaded  the  plaintiffs'  right  by  intimidating 
and  coercing  their  employers  to  deprive  them  of  their 
present  and  future  employment,'  and  that  the  plaintiffs  are 
therefore  entitled  to  maintain  this  action.  But  '  excuse 
or  justification  '  is  only  needed  where  an  act  is  prima  facie 
wrongful.  Whether  the  defendant's  act  was  so  is  the 
matter  to  be  determined.  To  say  that  the  defendant  acted 

*  unlawfully  '  is  with  all  respect  to  beg  the  question,  which 
is  whether  he  did  so   or  not.     To  describe  his  acts  as  un- 
just and  tyrannical  proves  nothing,  for  these  epithets  may 
be  and  are,  in  popular  language,  constantly  applied  to  acts 
which  are  within  a  man's  rights  and  unquestionably  lawful. 
In  my  opinion  these  epithets  do  not  advance  us  a  step  towards 
the  answer  to  the  question  which  has  to  be  solved.     The 
proposition  is  reduced  to  this,  that  the  appellant  invaded 
the  plaintiff's  right    by  intimidating    and   coercing    their 
employers.     In  another  passage  in  his  opinion  the  learned 
judge  says  that  there  is  no  authority  for  the  proposition 
that  to  render  threats,  menaces,  intimidation  or  coercion 
available  as  elements  in  a  cause  of  action,  they  must  be  of 
such  a  character  as  to  create  fear  of   personal  violence.     I 
quite  agree  with  this.     The  threat  of  violence  to  property 
is  equally  a  threat  in  the  eye  of  the  law.     And  many  other 
instances  may    be  given.     On  the  other  hand  it  is  unde- 
niable   that    the    terms    « threat,'   « coercion,'    and     even 

*  intimidation,'    are  often    applied   in  popular  language  to 
utterances    which  are   quite  lawful  and  which  give  rise  to 
no  liability  either  civil   or  criminal.     They  mean  no  more 
than  this,  that  the  so-called  threat  puts  pressure,   and  per- 
haps extreme  pressure,  on  the  person  to  whom  it  is  addressed 
to   take  a  particular  course.       Of  this  again,  numberless 
instances  might  be  given.     Even  then  if  it  can  be  said  with- 
out abuse  of  language  that  the  employers  were  '  intimidated 
and  coerced  '  by  the  appellant,  even  if  this  be  in  a  certain 
sense  true,  it  by  no  means    follows   that  he  committed  a 
wrong  or  is  under  any  legal  liability  for  his  act.     Every- 

§  115 


456  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

thing  depends  on  the  nature  of  the  representation  or  state- 
ment by  which  the  pressure  was  exercised.  The  law  can- 
not regard  the  act  differently  because  you  choose  to  call  it 
a  threat  or  coercion  instead  of  an  intimidation  or  warning. 
"  I  understood  it  to  be  admitted  at  the  bar,  and  it  was 
indeed  stated  by  one  of  the  learned  judges  in  the  Court  of 
Appeal,  that  it  would  have  been  perfectly  lawful  for  all 
the  ironworkers  to  leave  their  employment  and  not  to  ac- 
cept a  subsequent  engagement  to  work  in  the  company  of 
the  plaintiff.  At  all  events  I  cannot  doubt  that  this  would 
have  been  so.  I  cannot  doubt  either  that  the  appellant  or 
the  authorities  of  the  union  would  equally  have  acted  within 
his  or  their  rights  if  he  or  they  had  «  called  the  men  out.' 
They  were  members  of  the  union.  It  was  for  them  to  de- 
termine whether  they  would  become  so  or  not,  and  whether 
they  would  follow  or  not  follow  the  instructions  of  its  author- 
ities, thoughno  doubt  if  they  had  refused  toobey  any  instruc- 
tions which  under  the  rules  of  the  union  it  was  competent 
for  the  authorities  to  give,  they  might  have  lost  the  benefits 
they  derived  from  membership.  It  is  not  for  your  lord- 
ships to  express  any  opinion  on  the  policy  of  trade  unions, 
membership  of  which  may  undoubtedly  influence  the  action 
of  those  who  have  joined  them.  They  are  now  recog- 
nized by  law ;  there  are  combinations  of  employers  as 
well  as  of  employed.  The  members  of  these  unions,  of 
whichever  class  they  are  composed,  act  in  the  interest 
of  their  class.  If  they  resort  to  unlawful  acts  they  may 
be  indicted  or  sued.  If  they  do  not  resort  to  unlawful 
acts,  they  are  entitled  to  further  their  interests  in  the  man- 
ner which  seems  to  them  best,  and  most  likely  to  be  effect- 
ual. If,  then,  the  men  had  ceased  to  work  for  the  company 
either  of  their  own  motion  or  because  they  were  «  called 
out,'  and  the  company  in  order  to  secure  their  return  had 
thought  it  expedient  no  longer  to  employ  the  plaintiffs,  they 
could  certainly  have  maintained  no  action.  Yet  the  damage 
to  them  would  have  been  just  the  same.  The  employers 
§  115 


STRIKES,    CONTINUED,    AND    BOYCOTTS.  457 

would  have  been  subjected  to  precisely  the  same  '  coercion  ' 
and  *  intimidation,'  save  that  it  was  by  act  and  not  by  pros- 
pect of  the  act;  they  would  have  yielded  in  precisely  the 
same  way  to  the  pressure  put  upon  them,  and  been  actuated 
by  the  same  motive,  and  the  aim  of  those  who  exercised 
the  pressure  would  have  been  precisely  the  same.  The 
only  difference  would  have  been  the  additional  result  that 
the  company  also  might  have  suffered  loss.  I  am  quite  un- 
able to  conceive  how  the  plaintiffs  can  have  a  cause  of 
action,  because,  instead  of  the  iron  workers  leaving,  either 
on  their  own  motion,  or  because  they  were  called  out,  there 
was  an  intimation  beforehand  that  either  the  one  or  the 
other  of  these  courses  would  be  pursued.  *  *  *  The 
object  which  the  appellant  and  the  iron  workers  had  in  view 
was  that  they  should  be  freed  from  the  presence  of  men 
with  whom  they  disliked  working,  or  to  prevent  what  they 
deemed  an  unfair  interference  with  their  rights  by  men  who 
did  not  belong  to  their  craft  —  doing  the  work  to  which 
they  had  been  trained.  Whether  we  approve  or  disapprove 
of  such  attempted  trade  restrictions,  it  was  entirely  within 
the  right  of  the  iron  workers  to  take  any  steps,  not  unlaw- 
ful, to  prevent  any  of  the  work  which  they  regarded  as 
legitimately  theirs  being  intrusted  to  other  hands.  *  *  * 
**  The  iron  workers  were  no  more  bound  to  work  with 
those  whose  presence  was  disagreeable  to  them  than  the 
plaintiffs  were  bound  to  refuse  to  work  because  they  found 
that  this  was  the  case.  The  object  which  the  defendant, 
and  those  whom  he  represented,  had  in  view  throughout 
was  what  they  believed  to  be  the  interest  of  the  class  to 
which  they  belonged;  the  step  taken  was  a  means  to  that 
end.  The  act  which  caused  the  damage  to  the  plaintiffs 
was  that  of  the  iron  company  in  refusing  to  employ  them. 
The  company  would  not  subordinate  their  own  interests  to 
the  plaintiffs.  It  is  conceded  that  they  could  take  this 
course  with  impunity.  Why,  then,  should  the  defendants 
be  liable  because  he  did  not  subordinate  the  interests  of 

§  115 


458  KEGULATION   OF   TRADES   AND   OCCUPATIONS. 

those  he  represented  to  the  plaintiffs?  Self-interest  dic- 
tated alike  the  act  of  those  who  caused  the  damage,  and 
the  act  which  is  found  to  have  induced  them  to  cause  it." 

"  *  *  *  I  do  not  doubt  that  every  one  has  a  right  to 
pursue  his  trade  or  employment  without  '  molestation '  or 
*  obstruction,'  if  those  terms  are  used  to  imply  some  act  in 
itself  wrongful.  This  is  only  a  branch  of  a  much  wider 
proposition,  namely  that  every  one  has  a  right  to  do  any 
lawful  act  he  pleases  without  molestation  or  obstruction. 
If  it  be  intended  to  assert  that  an  act  not  otherwise  wrong- 
ful always  becomes  so,  if  it  interferes  with  another's  trade 
or  employment,  and  needs  to  be  excused  or  justified,  I  say 
that  such  a  proposition  in  my  opinion  has  no  solid  founda- 
tion in  reason  to  rest  upon.  A  man's  right  not  to  work  or 
not  to  pursue  a  particular  trade  or  calling,  or  to  determine 
when  or  where  or  with  whom  he  will  work  is  in  law  a  right  of 
precisely  the  same  nature  and  entitled  to  just  the  same  pro- 
tection as  a  man's  right  to  trade  or  work." 

Commenting  on  the  Mogul  case,  and  claiming  it  as  an 
authority  in  support  of  the  appellant,  Lord  Herschell 
continues  :  — 

*'  In  that  case  the  very  object  of  the  defendants 
was  to  induce  shippers  to  contract  with  them,  and 
not  to  contract  with  the  plaintiffs,  and  thus  to  bene- 
fit themselves  at  the  expense  of  the  plaintiffs,  and  to 
injure  them  by  preventing  them  from  getting  a  share  of  the 
carrying  trade.  Its  express  object  was  to  molest  and  inter- 
fere with  the  plaintiffs  in  the  exercise  of  their  trade.  It 
was  said  that  this  was  held  lawful,  because  the  law  sanctions 
acts  which  are  done  in  furtherance  of  trade  competition. 
I  do  not  think  the  decision  rests  on  so  narrow  a  basis,  but 
rather  on  this,  that  the  acts  by  which  the  competition  was 
pursued  were  all  lawful  acts,  that  they  were  acts  not  in 
themselves  wrongful,  but  a  mere  exercise  of  the  right  to 
contract  with  whom,  and  when,  and  under  what  circum- 
stances, and  upon  what  conditions  they  pleased.  I  am 
§  115 


STRIKES,    CONTINUED,    AND    BOYCOTTS.  459 

aware  of  no  ground  for  saying  that  competition  is  regarded 
with  special  favor  by  the  law ;  at  all  events  I  see  no  reason 
why  it  should  be  so  regarded.  *  *  *  But  if  the  alleged 
exception  could  be  established,  why  is  not  the  present  case 
within  it? 

"  What  was  the  object  of  the  defendant  and  the  workmen 
he  represented,  but  to  assist  themselves  in  their  competi- 
tion with  the  shipwrights?  A  man  is  entitled  to  take 
steps  to  compete  to  the  best  advantage  in  the  employment 
of  his  labor,  and  to  shut  out,  if  he  can,  what  he  regards  as 
unfair  competition,  just  as  much  as  if  he  was  carrying  on 
the  business  of  a  ship-owner.  The  inducement  the  appel- 
lant used  to  further  his  end  was  the  prospect  that  the 
members  of  his  union  would  not  work  in  company  with 
what  they  deemed  unfair  rivals  in  their  calling.  What  is 
the  difference  between  this  case  and  that  of  a  union  of 
ship-owners  who  induce  merchants  not  to  enter  into  con- 
tracts with  the  plaintiffs,  by  the  prospect  that  if  at  any 
time  they  employ  the  plaintiffs'  ships  they  will  suffer  the 
penalty  of  being  made  to  pay  higher  charges  than  their 
neighbors  at  the  time  when  the  defendants'  ships  alone 
visit  the  ports?  In  my  opinion  there  is  no  difference  in 
principle  between  the  two  cases."  1 


1  The  following  is  a  quotation  from  the  confirmatory  opinion  of  Lord 
Watson,  p.  78,  Allen  v.  Flood :  — 

"  It  is,  in  my  opinion,  the  absolute  right  of  every  workman  to  exercise 
his  own  option  with  regard  to  the  persons  in  whose  society  he  will  agree 
to  continue  to  work.  It  may  be  deplorable  that  feelings  of  rivalry 
between  different  associations  of  workingmen  should  ever  run  so  high 
as  to  make  members  of  one  union  seriously  object  to  continue  their 
labor  in  company  with  members  of  another  trade  union;  but  so  long  as 
they  commit  no  legal  wrong,  and  use  no  means  which  are  illegal,  they 
are  at  perfect  liberty  to  act  upon  their  own  views." 

There  were  other  more  elaborate  opinions  dissenting  from  the  pre- 
vailing opinion  of  Lord  Herschell,  but  to  the  American  student  the  fol- 
lowing quotation  from  the  opinion  of  Lord  Cave  (p.  36),  seems  to  be  the 
most  important:  — 

"  Bearing  in  mind  the  dicta  of  Lord  Holt  and  Sir  William  Erie,  which 

§  115 


460  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

This  subject  of  boycotting  has  recently  been  very  fully 
considered  by  the  Supreme  Court  of  Illinois,  in  a  case 1  in 

have  been  already  cited,  and  remembering  how  men  earn  their  liveli- 
hood by  almost  insensible  gradations,  from  disposing  of  their  labor 
only,  through  disposing  of  goods  which  owe  what  value  they  possess 
solely  to  the  labor  which  has  been  spent  upon  them,  up  to  disposing  of 
goods  in  which  the  labor  spent  upon  them  forms  a  continually  decreas- 
ing portion  of  their  value,  it  seems  impossible  at  the  present  day  to  hold 
that  there  is  one  law  for  the  comparatively  rich  trader,  and  another  for 
the  comparatively  poor  working  man  living  by  his  labor,  and  I,  there- 
fore, answer  the  first  part  of  the  question  put  to  us  by  saying  that  in 
my  opinion  Allen,  in  inducing  their  employers  to  dismiss  the  respondents 
from  their  employment,  was  guilty  of  a  violation  of  their  right  to  freely 
dispose  of  their  labor  without  molestation,  and  that;  this  is  an  actionable 
wrong,  unless  he  can  justify  it  by  showing  that  he  had  some  lawful  cause 
or  excuse  for  what  he  did.  *  *  *  Now  in  the  present  case,  disre- 
garding all  questions  as  to  whether  Allen  couched  his  inducement  in  the 
form  of  a  threat  or  of  advice,  and  as  to  whether  he  correctly  or  incor- 
rectly reported  to  the  employers  what  had  taken  place  between  himself 
and  the  boiler-makers,  there  remains  the  fact  that  Allen  induced  their 
employers  to  cease  employing  the  respondents,  not  because  the  boiler- 
makers  wished  to  do,  or  could  do,  the  work  on  which  the  respondents 
were  then  employed,  but  because  the  respondents  had  been  previously 
guilty  of  doing  iron  work  in  Mills  &  Knight  yards.  His  motive  there- 
fore, was  not  to  secure  the  work  they  were  then  doing  for  the  boiler- 
makers,  but  to  punish  the  respondents  for  what  they  had  previously  done, 
and,  according  to  Edmonds  and  Halkett  when  they  spoke  about  it  not 
being  right  to  visit  Mills  &  Knight's  sins  on  the  Glengall  Iron  Com- 
pany, Allen  said  that  the  boiler-makers  would  be  called  out  from  any 
yard  the  respondents  went  to,  and  that  they  (the  respondents)  would 
not  be  allowed  to  work  anywhere  in  London  River.  Now,  although  ac- 
cording to  the  principles  of  the  Mogul  case  (23  Q.  B.  D.  598)  the  action 
of  Allen  might  have  been  justified  on  the  principles  of  trade  competition, 
if  it  had  been  confined  to  the  time  when  the  respondents  were  doing  iron- 
work, and  were  therefore  acting  in  competition  with  the  boiler-makers, 
it  appears  to  me  that  soon  as  he  overstepped  these  limits  and  induced 
their  employers  to  dismiss  them  by  way  of  punishment,  his  action  was 
without  just  cause  or  excuse,  and  consequently  malicious  within  the 
legal  meaning  of  the  term.  *  *  *  If  this  is  not  malicious,  I  ask 
where  the  line  is  to  be  drawn.  Might  Allen  lawfully  have  carried  out 
his  threat,  and  with  impunity  have  procured  the  dismissal  of  the  re- 
spondents from  every  yard  in  London  by  way  of  punishment,  and  not  in 
the  way  of  competition?" 

1  Doremus  v.  Hennessy   (111.),  52  N.   E.   924;  rehearing  denied,  54 
N.  E.  524. 

§  H5 


STRIKES,    CONTINUED,    AND   BOYCOTTS.  461 

which  the  facts  raise  squarely  the  question  whether  a 
perfectly  peaceful  boycott  brings  the  boycotter  within 
the  condemnation  of  the  criminal  law.  In  this  case,  the 
plaintiff  conducted  a  laundry  business,  engaging  others  to 
do  the  work,  she  receiving  and  delivering  the  same  to 
her  customers.  In  consequence  of  her  refusal  to  fix  the 
price  for  her  work,  in  accordance  with  the  scale  of  prices 
established  by  the  laundrymen's  association,  she  was  boy- 
cotted; and  those  who  had  contracted  with  her  to  do  her 
work,  were  induced  to  break  their  contracts  with  her,  no 
force  or  fraud  being  used.  The  court  held  this  to  be  an 
unlawful  conspiracy,  and  punishable  as  such.  A  petition 
for  rehearing  was  made,  on  the  ground  that  counsel  for 
defendants  had,  since  the  first  hearing,  met  with  the  case 
of  Allen  v.  Flood,  and  wanted  it  considered  by  the  Su- 
preme Court  of  Illinois.  The  court  denied  the  rehear- 
ing, and  added  that  the  facts  of  Allen  v.  Flood  were 
different  from  those  in  the  present1  case.  In  the  original 
hearing  of  the  case *  in  declaring  this  boycott  to  be  an 
unlawful  conspiracy,  the  court  said :  «'  Appellants  and 
those  persons  who  refused  to  do  appellee's  work,  had 
each  a  separate  and  independent  right  to  unite  with  the 
organization  known  as  the  '  Chicago  Laundrymen's  As- 
sociation,' but  they  had  no  right  separately,  or  in  the 
aggregate,  with  others,  to  insist  that  the  appellee  should 
do  so,  or  to  insist  that  appellee  should  make  her  scale  of 
prices  the  same  as  that  fixed  by  the  association,  and  make 
her  refusal  to  do  this  a  pretext  for  destroying  and  break- 
ing up  her  business.  A  combination  by  them  to  induce 
others  not  to  deal  with  appellee,  or  enter  into  contracts 
with  her,  or  do  any  further  work  for  her,  was  an  action- 
able wrong.  Every  man  has  a  right,  under  the  law,  as 
between  himself  and  others,  to  full  freedom  in  disposing 
of  his  own  labor  or  capital  according  to  his  own  will,  and 

1  Doremus  v.  Hennessy  (111.),  52  N.  E.  924,  925. 

§  115 


462  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

any  one  who  invades  that  right  without  lawful  cause  or 
justification,  commits  a  wrong." 

In  denying  the  petition  for  a  rehearing,1  the  Court  say: — 
'*  The  facts  in  the  case  of  Allen  v.  Flood  are  entirely 
different  from  the  facts  presented  in  this  record.  There  was 
no  contract  in  that  case,  the  breach  of  which  was  induced 
by  the  defendant  (meaning,  as  stated  in  another  part  of 
the  opinion,  that  in  the  case  of  Allen  v.  Flood,  the  men, 
who  were  discharged,  at  the  instance  of  Allen,  were  only 
employed  from  day  to  day).  Here,  existing  contracts 
which  were  a  property  right  in  the  plaintiff  (the  appellee) 
were  broken,  and  this  was  brought  about  by  the  action  of 
the  defendants  in  inducing  those  contracting  with  her  to 
violate  their  contracts.  This  caused  a  right  to  be  taken 
away,  in  consequence  of  which  she  was  injured  and  dam- 
aged." If  this  explanation  of  the  difference  in  the  facts 
of  the  two  cases  is  to  be  accepted  as  an  announcement  that 
the  Supreme  Court  of  Illinois  would  have  decided  the 
Doremus  case  in  accordance  with  the  ruling  in  the  case  of 
Allen  v.  Flood,  if  there  had  been  no  continuing  contract 
for  the  doing  of  the  laundry  work  of  the  plantiff,  the  court 
has  made  a  material  modification  of  the  generally  preva- 
lent American  doctrine. 

This  modern  view  of  the  law  of  conspiracy  is  not  limited 
in  its  application  to  the  acts  of  labor  combinations.  Giv- 
ing only  a  passing  reference  to  a  conspiracy  of  church  mem- 
bers to  get  rid  of  the  minister,2  we  find  that  in  some  cases, 
it  is  held  to  be  an  actionable  wrong  for  a  combination  of 
tradesmen  to  agree  not  to  sell  goods  to  a  particular  person 
or  a  particular  class  of  persons,  but  the  cases  do  not  all 
hold  the  same  view.  In  one  case,  an  association  of  retail 

1  Doremus  v.  Hennesy  (111.  '99),  54  N.  E.  524. 

2  Fisher  v.  Schuri,  73  Wis.  370.    The  petition,  which  was  held  to  state 
a  good  cause  of  action,  charged  this  combination  of  church  members  with 
"  unlawfully,  maliciously  and  without  just  cause    *    *    *    conspiring, 
conniving  and  contriving  to  injure  plaintiff,"  etc. 

§  115 


STRIKES,    CONTINUED,    AND    BOYCOTTS.  463 

dealers  in  lumber  agreed  not  to  buy  of  manufacturers  who 
sold  directly  to  consumers.  Such  associations  of  middle 
men  are  to  be  found  in  almost  every  city  and  town,  and 
most  of  them  pursue  this  policy.  This,  action  of  the  as- 
sociation was  held  to  be  lawful.1  But,  in  Indiana,  a  similar 
condemnation  of  the  sale  of  lumber  to  brokers,  who  did  not 
keep  lumber  yards,  was  declared  to  be  an  unlawful  con- 
spiracy; and  the  manufacturer,  against  whom  the  rule  was 
enforced,  could  recover  damages.2  The  same  conclusion 
was  reached  as  to  the  illegality  of  the  acts  of  an  association 
of  wholesale  lumber  dealers  who  had  agreed  not  to  sell  to 
any  but  regular  retail  dealers,  in  threatening  to  notify  the. 
retail  dealers  not  to  deal  with  plaintiff  unless  he  joined  their 
association.3  It  was  also  held  to  be  an  unlawful  and  action- 
able conspiracy  for  manufacturers,  in  a  boycott  of  a  rival 
manufacturer,  to  agree  not  to  sell  their  goods  to  dealers 
who  bought  the  goods  of  the  latter.4  In  the  note  below  5  will 
be  found  cases  cited,  in  which  the  boycott  of  rival  dealers 
was  purely  malicious,  and  was  conducted  without  any 
justifiable  motive  and  not  in  pursuit  of  any  justifiable 
economic  end.  They  were,  of  course,  declared  to  be 
actionable  wrongs.  In  a  Texas  case,  it  was  held  to  be  an 
actionable  conspiracy  for  dealers  to  agree  not  to  sell  to  a 
consumer,  who  was  indebted  to  one  of  them  ;  and  the  court 
expressly  laid  down  the  rule,  that,  while  a  person  has  the 
right  to  refuse  to  have  dealings  with  another,  with  or  with- 
out reason,  "  the  privilege  is  limited  to  the  individual 

1  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn.  223. 

2  Jackson  v.  Stanfield,  137  Ind.  592. 

8  Olive  v.  Van  Patten,  7  Tex.  Civ.  App.  630. 

4  Dueber  Watch-case  Mfg.  Co.  v.  Howard  Watch  &  Clock  Co.,  24  N. 
Y.  S.  647;  3  Misc.  Rep.  582.  This  same  dispute  gave  rise  to  an  action 
in  the  Federal  courts,  but  the  court  denied  relief  on  the  ground  that  the 
case  did  not  involve  any  question  relating  to  interstate  commerce.  S.  c. 
55  Fed.  851. 

*  Van  Horn  v.  Van  Horn,  56  N.  J.  L.  318;  Murray  t>.  McGarigle,  69 
Wis.  483. 


464  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

action  of  the  party  who  asserts  the  right.  It  is  not  equally 
true  that  one  person  may  from  such  motives  influence  an- 
other person  to  do  the  same  thing." l  But  a  contrary  ruling 
was  made  in  some  Kentucky  cases 2  in  which  a  similar 
agreement,  not  to  sell  to  any  one  indebted  to  any  member 
of  the  association,  was  made  a  part  of  the  obligations  of 
the  members.  Likewise,  in  a  Rhode  Island  case,  it  was 
held  to  be  lawful  for  an  association  of  plumbers  to  agree 
not  to  buy  of  wholesale  dealers  in  plumbers'  goods,  who 
sold  to  a  plumber  who  was  not  a  member  of  the  plumbers* 
association.  This  was  held  to  be  lawful  competition.3 

While  it  is  not  the  habit,  in  general,  for  employers  to 
combine  for  mutual  protection  against  employees,  since  in 
most  cases  the  individual  employer  finds  himself  strong 
enough  to  cope  with  the  demands  of  the  trade  union,  a 
combination  has  been  made  among  certain  classes  of  em- 
ployers, street-car  companies  for  example,  one  of  whose 
regulations  is  that  the  members,  on  being  notified,  shall 
not  give  employment  to  a  workman  who  is  on  a  strike  with 
a  member  of  the  combination.  When  a  strike  is  ordered, 
in  such  a  case,  a  list  of  the  names  of  the  strikers  is  sent  to 
the  members  of  the  association,  who  will,  in  carrying  out 
their  obligations  to  the  association,  refuse  to  give  employ- 
ment to  a  striker  who  applies  for  work.  In  Pennsylvania, 
it  has  been  held  that  such  a  combination  does  not  consti- 
tute an  unlawful  conspiracy.4  But  a  contrary  ruling  was 
made  in  a  case  in  which  an  apprentice,  who  had  been  in 
the  employ  of  B.  &  Co.,  under  indentures  which  were  sup- 
posed to  be  valid  but  which  were  not,  was  discharged,  and 
the  employer  notified  others  in  the  same  trade  not  to 
engage  this  apprentice.  The  court  held  that  the  apprentice 

1  Delz  v.  Winfree,  80  Tex.  400. 

2  Schulten  v.  Bavarian  Brewing  Co.,  96  Ky.  224;  Brewster  v.  Miller 
(Ky.  1897),  41  S.  W.  301. 

3  Macauley  v.  Tierney,  19  R.  I.  265. 

4  Bradley  v.  Pierson,  148  Pa.  St.  502. 

§  115 


STRIKES,    CONTINUED,    AND    BOYCOTTS.  465 

was  entitled  to  damages,  because  this  notice  of  his  discharge 
had  prevented  his  procuring  employment.1 

A  word  of  explanation,  why  I  have  given  so  much  prom- 
inence to  the  two  English  cases  of  Mogul  Steamship  Com- 
pany v.  MacGregor,  and  Allenv.  Flood,  in  this  discussion, 
is  not  inappropriate.  In  England,  the  right  of  capitalists, 
manufacturers  and  traders  to  combine  for  mutual  economic 
advantage,  has  never  been  materially  affected  by  statutory 
modifications.  On  the  other  hand,  combinations  of  work- 
ingmen  have  until  a  late  day  been  prohibited  in  England 
by  statute.  These  statutes  have  now  been  repealed,  and 
trades-unions  and  other  labor  combinations  have  been  ex- 
pressly legalized.  The  first  of  these  English  cases  gives  a 
most  elaborate  statement  of  the  common  law  as  to  the 
legality  of  capitalistic  combinations  ;  while  the  second  case 
presents  the  same  law  as  it  bears  upon  the  legality  of  labor 
combinations,  both  unaffected  by  statutory  condemnation 
or  restrictions  of  such  combinations.  In  the  United  States, 
on  the  other  hand,  legislatures  have  been  so  exceedingly 
active  in  controlling,  restricting,  and  finally  in  prohibiting 
all  combinations  in  restraint  of  trade  and  competition,  that 
it  is  almost  impossible  for  an  analytisal  jurist  to  determine 
to  what  degree  these  statutes  have  controlled  the  judicial 
opinion,  as  to  what  acts  constitute  at  common  law  an  ac- 
tionable conspiracy.  A  comparison  of  these  two  English 
cases  with  the  American  decisions  on  trade  and  labor  com- 
binations will  also  be  helpful  in  pointing  out  how  much 
confusion  of  thought  can  be  created  by  ill-considered  and 
poorly  constructed  legislation  on  a  problem,  which  reaches 
so  deep  down  into  the  mysteries  of  human  desires,  and 
which  is  so  completely  within  the  control  of  the  inexorable 
laws  of  nature,  and  the  social  forces. 

1  Blamenthal  ».  Shaw,  77  Fed.  954;  23  C.  C.  A.  690. 

30  §  115 


466  REGULATION    OF   TRADES   AND   OCCUPATIONS. 

SECTION  116.  Wagering  contracts  prohibited. 
117.  Option  contracts,  when  illegal. 

§  116.  Wagering  contracts  prohibited. — At  all  times 
in  the  history  of  the  English  and  American  law,  gambling 
of  every  variety  has  been  the  subject  of  police  regulation. 
The  lower  and  more  common  forms  of  gambling,  when  con- 
ducted as  a  business,  are  now  uniformly  prohibited  and  the 
prosecution  of  them  made  a  penal  offense.  Ordinarily, 
however,  wagers  or  bets  are  only  so  far  prohibited  or  regu- 
lated that  the  courts  refuse  to  perform  the  contracts.  In- 
dependently of  statute,  no  wager  of  any  kind  constitutes  a 
penal  offense.  It  requires  statutory  legislation  to  make 
betting  a  misdemeanor.  Indeed,  such  legislation  would  be 
open  to  serious  constitutional  objections.  Gambling  or  bet- 
ting of  any  kind  is  a  vice  and  not  a  trespass,  and  inasmuch 
as  the  parties  are  willing  victims  of  the  evil  effects,  there  is 
nothing  which  calls  for  public  regulation.1  But  when  they 
pursue  gambling  as  a  business,  and  set  up  a  gambling  house, 
like  all  others  who  make  a  trade  of  vice,  they  may  be  pro- 
hibited and  subjected  to  severe  penalties.2  And  so,  also,  if 
they  apply  to  the  courts  for  aid  in  enforcing  the  contracts 
made  in  the  indulgence  of  this  vice,  the  courts  can  properly 
refuse  to  assist  them. 

A  wager  or  bet,  according  to  Mr.  Bouvier,  is  "  a  contract 
by  which  two  parties  or  more  agree  that  a  certain  sum  of 
money  or  other  things,  shall  be  paid  or  delivered  to  one  of 
them  on  the  happening,  or  not  happening,  of  an  uncertain 
event."  Employing  the  word  in  this  sense,  it  is  pretty 
well  settled  that  all  wager  contracts  were  not  void  at 
common  law.  The  distinction  between  the  legal  and  the 
illegal  wagers  seems  to  rest  upon  the  good  or  evil  character 
of  the  event  or  act,  which  constitutes  the  subject-matter  of 

1  See,  ante,  §  60. 

2  See,  post,  §  120.     See  contra  State  v.  Roby,  142  Ind.  168;  State  exrel. 
Matthews  v.  Forsythe,  147  Ind.  466;  Wootenw.  State,  23  Fla.  335;  State 
v.  Donovan  (Nev.),  15  Pac.  783. 

§  11« 


WAGERING    CONTRACTS    PROHIBITED.  467 

the  wager.  If  the  wager  was  about  a  harmless  and  legal  act 
or  event,  the  wager  was  itself  legal,  and  the  wager  contract 
could  be  enforced.1  But  if  the  wager  has  reference  to  the 
happening  or  doing  of  some  act  which  is  illegal  or  against 
good  morals,  the  wager  is  void  and  will  not  be  enforced.2 
In  no  part  of  the  civilized  world  are  contracts  for  the  in- 
surance of  life  or  property  against  accidental  destruction 
held  to  be  invalid. 

The  English  doctrine  is  clearly  sustained,  as  a  part  of 
the  common  law,  by  the  decision  of  some  of  the  American 
courts.3  But,  except  in  the  matter  of  insurance  contracts, 
all  wager  contracts  are  declared  to  be  invalid  in  Maine, 
Massachusetts,  New  Hampshire,  Vermont,  and  Pennsylva- 
nia, whatever  may  be  the  character  of  the  event  or  act, 
which  constitutes  the  foundation  for  the  wager.4  In  many 

1  Thus  it  was  lawful  at  common  law  to  bet  that  A.  has  purchased  a 
wagon  of  B.  (Good  v.  Elliott,  3  T.  R.  693)  ;  or  to  bet  on  a  cricket-match. 
Walpole  v.  Saunders,  16  E.  C.  L.  R.  276.     See,  also,  generally,  in  support 
of  the  position  taken  above,  Sherborne  v.  Colebach,  2  Vent.  175;  Hussey 
v.  Crickell,  3  Campb.  168;  Grant  v.  Hamilton,  3  M.  L.  100;  Cousins  v. 
Mantes,  3  Taunt.  615;  Johnson  v.  Lonsley,  12  C.  B.  468;  Dalby  ».  India 
Life  Ins.  Co.,  15  C.  B.  365;  Hampdenw.  Walsh,  L.  R.  12  B.  D.  192. 

2  Thus,  wagers  are  void,  which  rest  upon  the  result  of  an  illegal  game 
(Brown  v.  Leeson,  2  H.  Bl.  43)  ;  which  involve  the  abstinence  from  mar- 
riage (Huntley  v.  Rice,  10  East.  22)  ;  which  refer  to  the  expected  birth  of 
an  illegitimate  child  CDitchburn  u.  Goldsmith,  4  Campb.  152);  or  to  the 
commission  of  adultery.    Del  Costa  v.  Jones,  Cowp.  729.    See  also,  to  the 
same  effect,  Shirley  v.  Sankey,  2  Bos.  &  P.  130;  Etham  v.  Kingsman,  1 
B.  &  Al.  684. 

8  Bunn  v.  Rikes,  4  Johns.  426;  Campbell  v.  Richardson,  10  Johns.  406; 
Dewees  v.  Miller,  5  Harr.  347;  Trenton  Ins.  Co.  v.  Johnson,  4  Zabr.  576; 
Dunrnan  v.  Strother,  1  Tex.  89;  Wheeler  v.  Friend,  22  Tex.  683;  Monroe 
v.  Smelley,  25  Tex.  586;  Grant  v.  Hamilton,  3  McLeau  (U.  S.  C.  C.), 
100;  Smith  v.  Smith,  21  111.  244;  Richardson  v.  Kelley,  85111.  491;  Petil- 
lon  ».  Hippie,  90  111.  420 ;  Carrier  v.  Brannan,  3  Cal.  328 ;  Johnson  v.  Hall, 
6  Cal.  359;  Johnson  v.  Russell,  37  Cal.  670. 

4  See  Lewis  w.  Littlefleld,  15  Me.  233;  McDonough  v.  Webster,  68  Me. 
530;  Gilmorew.  Woodcock,  69  Me.  118;  Babcock  v.  Thompson,  3  Pick. 
446;  Ball  v.  Gilbert,  12  Met.  399;  Sampson  v.  Shaw,  101  Mass.  150;  Per- 
kins v.  Eaton,  3  N.  H.  152;  Clark  o.  Gibson,  12  N.  H.  886;  Winchester  v. 

§  116 


468  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

of  the  States,  the  common  law  is  changed  by  statutes  which 
prohibit  all  wager  contracts,  and  forbid  their  enforcement 
by  the  courts.  Thus,  by  the  New  York  Revised  Statutes,1 
"  all  wagers,  bets,  or  stakes,  made  to  depend  upon  any 
race,  or  upon  any  gaming  by  lot  or  chance,  casualty,  or 
unknown  or  contingent  event  whatever,  shall  be  unlawful. 
All  contracts  for,  or  on  account  of,  any  money  or  property 
or  thing  in  action  so  wagered,  bet  or  staked  shall  be  void."  3 
It  is  to  be  observed,  that  in  all  of  these  judicial  and  legis- 
lative determinations  of  the  illegality  of  wagering  contracts, 
although  they  differ  in  respect  to  the  legality  of  particular 
wagers,  they  all  rest  upon  the  proposition  that  the  prohib- 
ited wagers  tend  to  develop  and  increase  the  spirit  of 
gambling  and  at  the  same  time  serve  no  useful  purpose. 
For  these  reasons  all  contracts,  based  upon  such  wagers, 
are  declared  to  be  illegal.  Inasmuch  as  insurance  contracts 
serve  a  useful  purpose,  they  are  not  prohibited  ;  and  it  is 
not  likely  that  a  law,  prohibiting  them,  would  be  sustained. 
It  is,  therefore,  the  evil  effect  of  betting,  coupled  with  its 
practical  uselessness,  that  justifies  its  prohibition;  for  all 
unobjectionable  contracts  have,  as  an  incident  of  property, 
an  inalienable  right  to  some  effective  remedy  in  the  courts 
of  the  country.3 

§  117.  Option  contracts,  when  illegal. — The  common 
forms  of  gambling  are  not  difficult  to  define  or  distinguish 
from  harmless  or  unobjectionable  transactions.  The  en- 
forcement of  the  law  against  gambling  in  such  cases  is  not 
trammeled  with  confusion  as  to  what  constitutes  the 
gravamen  of  the  offense.  It  is  the  staking  of  money  on  the 

Nutter,  62  N.  H.  607;  Collamer  ».  Day,  2  Vt.  144;  Tarlton  ».  Baker,  18 
Vt.  9;  Phillips  v.  Ives,  1  Rawle,  36;  Brua's  Appeal,  5  Sm.  294. 

1  1  Rev.  Stats.  N.  Y.  661,  \  8. 

2  Similar  legislation  is  to  be  found  in  New  Hampshire,  Virginia,  West 
Virginia,  Wisconsin,  Missouri,  Illinois,  Ohio  and  Iowa,  and  other  States. 

8  See,  post,  §  178. 

§    H7 


OPTION    CONTRACTS,    WHEN    ILLEGAL.  469 

issue  of  games  of  chance,  or  on  the  happening  or  not  hap- 
pening of  a  contingent  event  or  act,  in  those  cases  in  which 
the  wager  does  not  promote  a  public  or  private  good.  For 
many  years,  in  all  parts  of  the  commercial  world,  a  species 
of  commercial  gambling  has  been  devised  and  developed,  and 
which  is  still  increasing  in  proportions.  Large  bodies  of 
men  in  our  commercial  centers  congregate  daily  in  the  ex- 
changes for  the  purpose  of  betting  on  the  rise  and  fall  in  the 
price  of  stocks,  cotton,  and  produce.  The  business  is  dis- 
guised under  the  name  of  speculation,  but  it  is  nothing 
different  from  the  wager  on  the  result  of  some  game  of  cards. 
The  card  player  bets  that  he  will  win  the  game.  The  mer- 
chant, dealing  in  "futures,"  bets  that  the  price  of  a  com- 
modity will,  at  a  future  day,  be  a  certain  sum,  more  or  less 
than  the  ruling  market  price.  In  neither  case  does  the 
result  add  anything  to  the  world's  wealth ;  there  is  only 
an  exchange  of  the  ownership  of  property  without  any 
benefit  to  the  former  owner.  In  the  liquidation  of  both 
bets,  A.  passes  over  to  B.  a  certain  proportion  of  his  prop- 
erty. Under  the  guise  of  speculation,  it  is  given  an  air  of 
respectability  which  makes  the  indulgence  in  it  all  the  more 
dangerous  to  the  public  welfare.  The  disreputable  charac- 
ter of  the  common  forms  of  gambling,  made  so  by  public 
condemnation,  is  the  chief  protection  against  the  evil. 
But  men  of  respectability  are  engaged  in  option  dealing; 
and  the  apparent  respectability  of  the  business  develops,  to 
a  most  alarming  extent,  the  gambling  spirit  in  all  classes  of 
society.  Instead  of  striving  to  produce  something  that 
will  increase  the  world's  wealth,  while  they  accumulate 
their  own,  these  men  are  bending  every  energy,  and  taxing 
their  ingenuity,  to  take  away  what  his  neighbor  has  already 
produced.  Apart  from  this  injury  to  the  public  material 
and  moral  welfare,  the  commercial  gambling,  when 
developed  to  its  present  enormous  proportions,  unsettles 
the  natural  values  of  commodities,  and  the  fate  of  the  pro- 
ducer is  made  to  depend  upon  the  relative  strength  of  the 

§  117 


470  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

"bulls"  and  "bears."  Conceding  the  truth  of  these 
charges,  and  the  evil  effect  of  this  species  of  gambling 
which  has  never  been  seriously  questioned,  it  would  be  a 
legitimate  exercise  of  police  power  to  prohibit  these 
commercial  transactions.1  The  difficulty  lies  not  in  the 
justification  of  this  prohibitory  legislation,  but  in  dis- 
covering the  wrongful  element  in  the  transactions,  and  in 
distinguishing  them  from  legitimate  trading.  The  so-called 
"option  contracts"  are  in  form  contracts  for  the  sale  or 
purchase  of  commercial  commodities  for  future  delivery, 
at  a  certain  price,  with  the  option  to  one  or  both  of  the 
parties  in  settlement  of  the  contract  to  pay  the  difference 
between  the  contract  price,  and  the  price  ruling  on  the  day 
of  delivery ;  the  difference  to  be  paid  to  the  seller,  if  the 
market  price  is  lower  than  the  contract  price,  and  to  the 
purchaser,  if  the  market  price  is  higher.  Such  a  contract 
has  three  striking  elements  :  first,  it  is  a  contract  for  future 
delivery ;  secondly,  the  delivery  is  conditional  upon  the 
will  of  one  or  both  of  the  parties;  and  thirdly,  the  pay- 
ment of  differences  in  prices,  in  the  event  that  the  right  of 
refusal  is  exercised  by  one  of  the  parties.  If  the  common- 
law  offense  of  regretting  were  still  recognized  in  the  crimi- 
nal law,  all  contracts  for  future  delivery  may  be  open  to 
serious  question.2  But  that  rule  of  the  common  law  is 
repudiated,  and  it  may  now  be  considered  as  definitely  set- 
tled that  a  contract  for  future  delivery  of  goods  is  not  for 
that  reason  invalid.  If  they  infringe  the  law,  it  must  be  for 
some  other  reason  than  that  the  contract  stipulates  for  future 
delivery.  This  is  not  only  true,  when  the  vendor  has  the 
goods  in  his  possession  at  the  time  of  sale,  but  also  when  he 
expects  to  buy  them  for  future  delivery.  Lord  Tenterden 
claimed  that  in  the  latter  case  the  contract  was  a  wager  on 

1  A  Missouri  statute,  which  made  it  a  criminal  offense  to  make  these 
option  contracts,  was  held  to  be  constitutional.  State  v.  Gritzner,  134 
Mo.  512.  See  to  same  effect,  Wolsey  v.  Neely,  62  111.  App.  141. 

8  See  ante,  §  107. 
§  117 


OPTION    CONTRACTS,    WHEN    ILLEGAL.  471 

the  price  of  the  commodity,  and  for  that  reason  should  not 
be  enforced.1  But  the  position  here  taken  has  since  been 
repudiated  by  the  English  courts,  on  the  ground  that  it  is 
not  a  wager,  and  if  a  wager,  not  one  which  tends  to  injure 
the  public.2  The  late  English  opinion  is  generally  followed 
in  the  United  States,  and  it  may  be  stated,  as  the  general 
American  rule,  that  bona  fide  contracts  for  the  future  de- 
livery of  goods  are  not  invalid,  because  at  the  time  of 
sale  the  vendor  has  not  in  his  actual  or  potential  possession 
the  goods  which  he  has  agreed  to  sell.3 

1  "  I  have  always  thought,  and  shall  continue  to  think  until  I  am  told 
by  the  House  of  Lords  that  I  am  wrong,  that  if  a  man  sells  goods  to  be 
delivered  on  a  future  day,  and  neither  has  the  goods  at  the  time,  nor  has 
entered  into  any  prior  contract  to  buy  them,  nor  has  any  reasonable  ex- 
pectation of  receiving  by  assignment,  but  means  to  go  into  the  market 
and  to  buy  the  goods  which  he  has  contracted  to  deliver,  he  cannot  main- 
tain an  action  on  such  contract.    Such  a  contract  amounts,  on  the  part  of 
the  vendor,  to  a  wager  on  the  price  of  the  commodity,  and  is  attended 
with  the  most  mischievous  consequences."    Lord  Tenterden   in  Bryan 
v.  Lewis,  Req.  &  Moody,  386.    See,  also,  Longmer  v.  Smith,  1  B.  &  C.  1. 

2  •'  I  have  always  entertained  considerable  doubt  and  suspicion  as  to 
the  correctness  of  Lord  Tenterden's  doctrine  in  Bryan  v.  Lewis.     It  ex- 
cited a  good  deal  of  surprise  in  my  mind   at  the  time,  and  when  ex- 
amined, I  think  it  is  untenable.    I  cannot  see  what  principle  of  law  is  at 
all  affected  by  a  man's  being  allowed  to  contract  for  the  sale  of  goods, 
of  which  he  has  not  possession  at  the  time  of  the  bargain,  and  has  no 
reasonable  expectation  of  receiving.     Such  a  contract  does  not  amount 
to  a  wager,  inasmuch  as  both  the  contracting  parties  know  that  the 
goods  are  not  in  the  vendor's  possession ;  and  even  if  it  were  a  wager, 
it  is  not  illegal,  because  it  has  no  necessary  tendency  to  injure  third 
parties."    Baron  Parke  in  Hibblewhite  v.   McMorine,  5  M.  &  W.  58. 
See  Mortimer  v.  McCallan,  6  M.  &  W.  58;  Wells  ».  Porter,  3  Scott,  141. 

3  Head  v.  Goodwin,  37  Me.  181;  Kumsey  v.  Berry,  65  Me.  570;  Lewis 
v.  Lyman,  22  Pick.  437;  Thrall  v.  Hill,  110  Mass.  328;  Heald  v.  Builders' 
Ins.  Co.,  Ill  Mass.  38;  Smith  v.  Atkins,  18  Vt.  461;  Noyest?.  Spaulding, 
27  Vt.  420;  Hull  v.  Hull,  48  Conn.  250;  Hauton  v.  Small,  3  Sandf.  230; 
Carrie  ».  White,  45  N.  Y.  822;  Bigelow  r.  Benedict,  70  N.  Y.  202;  Brua's 
Appeal,  55  Pa.  St.  294;  Brown  v.  Speyer,  20  Gratt.  309;  Philips  v. 
Ocmulgee  Mills,  55  Ga.  633;  Noyes  v.  Jenkins,  55  Ga.  586;  Fonville  v. 
Casey,  1  Murphy,  389;  Whitehead  ».  Root,  2  Mete.  (Ky.)  684;  McCartyc. 
Blevins,  13  Tenn.  195;  Wilson  v.  Wilson,  37  Mo.  1;  Logan  v.  Musick,  81 
111.  415;  Pixley  v.  Boynton,  79  111.  351;  Pickering  v.  Cease,  79  111.  328; 

§  117 


472  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

It  is  also  held  to  be  au  unobjectionable  feature  in  such 
contracts,  that  the  vendee  has  no  expectation  of  receiving 
the  goods  purchased  into  his  actual  possession,  but  intends 
to  resell  them  before  the  delivery  of  the  possession  to  him.1 
To  quote  the  words  of  the  Kentucky  court,  **  sales  for 
future  delivery  have  long  been  regarded  and  held  to  be  in- 
dispensable in  modern  commerce,  and  as  long  as  they  con- 
tinue to  be  held  valid,  one  who  buys  for  future  delivery 
has  as  much  right  to  sell  as  any  other  person,  and  there 
cannot,  in  the  very  nature  of  things,  be  any  valid  reason 
why  one  who  buys  for  future  delivery  may  not  resolve,  be- 
fore making  the  purchase,  that  he  will  resell  before  the  day 
of  delivery,  and  especially  when,  by  the  rules  of  trade  and 
the  terms  of  his  contract,  the  person  to  whom  he  sells  will 
be  bound  to  receive  the  goods  from  the  original  seller,  and 
pay  the  contract  price."  2 

Nor  is  a  contract  necessarily  hurtful  to  the  public  wel- 
fare, which  provides  on  payment  of  a  valuable  considera- 
tion that  one  at  a  future  day  shall  have  the  right  to  buy 
certain  property  or  sell  other  property,  according  as  one  or 
the  other  happens  to  be  advantageous  to  him.  One  may 
have  a  lawful  and  beneficial  end  in  view  in  acquiring  such  a 
right  of  refusal.3  "  Mercantile  contracts  of  this  character 
are  not  infrequent,  and  they  are  consistent  with  a  bonafide 
intention  on  the  part  of  both  parties  to  perform  them.  The 

Lyon  v.  Culbertson,  83  111.  33;  Corbett  v.  Underwood,  83  111.324;  San- 
born  v.  Benedict,  78  111.  309;  Wolcott  v.  Heath,  78  111.  433;  Crawford  v. 
Spencer,  92  Mo.  498;  White  v.  Barber,  123  U.  S.  392;  Gruner  v. 
Stacker,  39  La.  Ann.  1076;  Wolffe  v.  Ferryman  (Ala.),  9  So.  148;  Mohr  v. 
Miesen,  47  Minn.  228;  Miles  v.  Andrews,  40  111.  App.  155;  Pope  v. 
Hanke,  155  111.  617;  Warren  o.  Scanlan,  59  111.  App.  138. 

1  Ashton  ».   Dakin,  4  H.  &  N.  867;  Sawyer,  Wallace  &  Co.  v.  Tag- 
gart,   14   Bush,    730;  Cameron  v.   Durkheim,   55  N.  Y.   425.     But  see 
contra,  Brua's  Appeal,  55  Pa.  St.  294;  Fareira  v.  Gabell,  89  Pa.  St.  89; 
North  v.  Phillips,  89  Pa.  St.  250;   Douglass  et  al.  v.  Smith,  74  Iowa,  468. 

2  Sawyer  et  al.  v.  Taggart,  14  Bush,  730. 

8  Story  v.  Salomon,  71  N.  Y.  420;  Kingsbnry  v.  Kirwan,  71  N.  Y.  612; 
Harris  v.  Lumbridge,  83  N.  Y.  92 ;  Bigelow  v.  Benedict,  70  N.  Y.  202. 
§  117 


OPTION    CONTRACTS,    WHEN   ILLEGAL.  473 

vendor  of  goods  may  expect  to  produce  or  acquire  them  in 
time  for  a  future  delivery,  and,  while  wishing  to  make  a 
market  for  them,  is  unwilling  to  enter  into  an  absolute  obli- 
gation to  deliver,  and  therefore  bargains  for  an  option  which, 
while  it  relieves  him  from  liability,  assures  him  of  a  sale, 
in  case  he  is  able  to  deliver;  and  the  purchaser  may,  in  the 
same  way,  guard  himself  against  loss  beyond  the  considera- 
tion paid  for  the  option,  in  case  of  his  inability  to  take  the 
goods.  There  is  no  inherent  vice  in  such  a  contract."  1 
And  the  consideration  for  this  option  may  very  properly  be 
the  difference  between  the  ruling  market  price  and  the  price 
specified  in  the  contract.  For  that  would  be  the  damage  to 
the  other  party,  resulting  from  the  sale  of  the  option  or 
refusal.2 

If  each  of  the  preceding  propositions  is  correct,  then  the 
illegality  of  option  contracts  must  depend  upon  the  inten- 
tion of  the  parties  not  to  deliver  the  goods  bargained  for, 
but  merely  to  pay  the  difference  between  the  market  price 
and  contract  price.  The  cases  are  unanimous  in  the  opin- 
ion that  a  contract,  for  the  payment  of  difference  in  prices, 
arising  out  of  the  rise  and  fall  in  the  market  price  above  or 
below  the  contract  price,  is  a  wager  on  the  future  price  of 
the  commodity,  and  is  therefore  invalid.3  It  has,  however, 

1  Bigelow  v.  Benedict,  70  N.  Y.  202.     In  this  case  A.,  for  a  valuable  con- 
sideration, agreed  to  purchase  gold  coin  of  B.  at  a  named  price,  the 
coin  to  be  delivered  at  any  time  within  six  months,  that  B.  might  choose. 
This  case,  as  a  legitimate  transaction,  is  more  easily  understood   than 
where  the  option  is  to  buy  certain  goods  or  to  sell  others,  but  the  latter 
can  exist  under  lawful  circumstances  and  have  a  lawful  end  in  view.    See 
Story  v.  Salomon,  71  N.  Y.  420.    But  see,  contra,  under  State  statute, 
Osgood  v.   Bander,   75  Iowa,   550;    Schneider  v.   Turner,    130   111.  28; 
Sheehy  v.  Shinn,  103  Cal.  325;  Riordan  v.  Doty,  50  S.  C.  537;  Sampson 
v.  Camperdown,  82  Fed.  833. 

2  Story  v.  Salomonj  71  N.  Y.  420;  Harris  v.  Lumbridge,  83  N.  Y.  92, 
and  the  cases  cited  in  the  next  note. 

8  Rumsey  v.  Berry,  65  Me.  574;  Wyman  v.  Fiske,  3  Allen,  238;  Brigham 
v.  Meade,  10  Allen,  246;  Barratt  v.  Hyde,  7  Gray,  160;  Brown  v.  Phelps, 
103  Mass.  303;  Hatch  v.  Douglass,  48  Conn.  116;  Noyes  v.  Spaulding,  27 

§  117 


474  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

been  held  that  the  true  test,  for  determining  whether  an 
option  deal  is  a  gambling  transaction,  is  whether  the  con- 
tract can  be  settled  in  money,  or  the  vendor  or  vendee  can 
compel  the  delivery  of  the  goods.1 

If  the  contracts  were  in  form,  as  well  as  in  fact, 
agreements  to  pay  the  difference  in  prices,  they  could 
be  easily  avoided,  and  thrown  out  of  court.  But  the 
contracts  never  assume  the  form  of  wagers  on  the  price 
of  the  commodity.  They  are  always  in  form  undistin- 
guishable  from  those  option  contracts,  in  which  the 
parties  in  good  faith  have  bargained  for  the  refusal  of 
the  goods,  and  which  are  valid  contracts.  The  fol- 
lowing is  a  good  illustration  of  the  ambiguity  of  the  form 
of  the  contract.  "  For  value  received,  the  bearer  (S.) 
may  call  on  the  undersigned  for  one  hundred  ( 100)  shares 
of  the  capital  stock  of  the  Western  Union  Telegraph  Com- 
pany, at  seventy-seven  and  one-half  (77V2)  per  cent.,  at 
any  time  in  thirty  (30)  days  from  date.  Or  the  bearer  may, 
at  his  option,  deliver  the  same  to  the  undersigned  at 

Vt.  240;  Story  v.  Salomon,  71  N.  Y.  420;  Bigelow  v.  Benedict,  70  N.  Y. 
202;  Harris  v.  Lumbridge,  83  N.  Y.  92;  North  ».  Phillips,  83  Pa.  St.  250; 
Ruchizky  v.  De  Haven,  97  Pa.  St.  202;  Dickson's  Ex'or  v.  Thomas,  97  Pa. 
St.  278;  Kirkpatrick  v.  Bonsall,  72  Pa.  St.  155;  Brown  v.  Speyer,  20  Gratt. 
296 ;  Williams  v.  Carr,  80  N.  C.  294;  Williams  v.  Tiedemann,  6  Mo.  App. 
269;  Lyon  v.  Culbertson,  83  111.  33;  Cole  3.  Milmine,  88  111.  349;  Corbitt 
v.  Underwood,  83  111.  324;  Pickering  v.  Cease,  79  111.  338;  Pixley  v. 
Boynton,  79  111.  351;  Barnard  v.  Backhouse,  52  Wis.  593;  Sawyer  v. 
Taggert,  14  Bush,  727;  Gregory  v.  Wendall,  39  Mich.  337;  Shaw  a.  Clark, 
49  Mich.  384;  Gregorys.  Wattoma,  58 Iowa,  711;  Everingham v.  Meighan, 
55  Wls.  354;  Rudolph  v.  Winters,  7  Neb.  125;  Dance  v.  Phelan,  82  Ga. 
243;  Fortenbury  v.  State,  47  Ark.  188  (not  unconstitutional  because  in 
restraint  of  trade);  Harvey  ».  Menill,  150  Mass.  1;  McGrew  v.  City 
Produce  Exchange  (Tenn.),  1  Pickle,  572;  Mutual  Life  Ins.  Co.  v.  Wat- 
son, 30  Fed.  653;  Sprague  v.  Warren,  26  Neb.  326;  Davis  v.  Davis,  119 
Ind.  511;  Hahn  v.  Walton,  46  Ohio  St.  195;  Schumechle  v.  Waters,  126 
Ind.  265;  Jamieson  v.  Wallace,  167  111.  388;  Wheeler  v.  McDermed,  86 
111.  App.  179;  Stewart  v.  Parnell,  147  Pa.  St.  523;  Kullman  v.  Simmens, 
104  Cal.  695;  Sheehy  v.  Shinn,  103  Cal.  325. 
1  Sampson  v.  Camperdown,  82  Fed.  833. 

§  117 


OPTION    CONTRACTS,    WHEN   ILLEGAL.  475 

seventy-seven  and  one-half  (77V2)  per  cent.,  any  time 
within  the  period  named,  one  day's  notice  required."1 
There  is  no  evidence  on  the  face  of  this  contract  of  the 
determination  of  the  parties  to  settle  on  the  differences 
in  price ;  and  while  such  a  contract  may  be  used  as  a 
cover  for  commercial  gambling,  it  is  not  necessarily  a 
wager  on  the  future  price  of  the  commodity. 

It  is  the  ordinary  rule  of  law  that  where  a  writing  is 
susceptible  of  two  constructions,  one  of  which  is  legal,  and 
the  other  illegal,  that  construction  will  prevail,  which  is  in 
conformity  with  the  law.2  Applying  this  rule  to  the  con- 
struction of  option  contracts,  it  has  very  generally  been 
held  that  these  contracts  are  valid  and  enforcible,  unless  it 
be  proven  affirmatively  that  the  parties  did  not  intend  to 
make  a  delivery  of  the  goods  bargained  for,  but  to  settle 
on  the  differences.3  And  if  it  be  shown  that  only  one  of 
the  parties  entertained  this  illegal  intention,  while  the  other 
acted  in  good  faith,  the  contract  will  be  void  as  to  the 
first,  but  will  be  enforcible  in  behalf  of  the  second.*  In 
delivering  the  opinion  of  the  New  York  Court  of  Appeals6 

1  Story  v.  Salomon,  71  N.  Y.  420;  Amsden  v.  Jacobs,    76  Hun,  311; 
Scbreiner  v.  Orr,  55  Mo.  App.  406;  Warren  v  Scanlan,  59  111.  App.  138; 
Watte  v.    Wickersham,   27    Neb.    457;  Bangs  v.  Hornack,  80  Fed.  97; 
Powell  v.    McCord,  121   111.  330;  McQrew  v.   City  Produce  Exchange 
(Tenn.),  1  Pickle,  572. 

2  l<  It  is  a  general  rule,  that  wheresoever  the  words  of  a  deed,  or  of 
the  parties  without  deed,  may  have  a  double  intendment,  and  the  one 
standeth  with  law  and  right,  and  the  other    is  wrongful  and    against 
law,  the  intendment  that  standeth  with  the  law  shall  be  taken."     Coke 
on  Lyttleton,  42,  183. 

8  Story  v.  Salomon,  71  N.  Y.  420 ;  Kingsbury  v.  Kirwan,  71  N.  Y.  612; 
Harris  v.  Lumbridge,  83  N.  Y.  92 ;  Williams  u.  Tiedemann,  6  Mo.  App. 
274;  Ward  v.  Vosburgh,  31  Fed.  12;  Crawford  v.  Spencer,  92  Mo.  498; 
Benson  v.  Morgan,  26  111.  App.  22 ;  Sampson  v.  Camperdown,  82  Fed.  833 ; 
Pratt  v.  Boody,  65  N.  J.  Eq.  175;  Union  Nat.  Bank  of  Chicago  v.  Carr,  16 
Fed.  Rep.  438 ;  and  cases  cited  in  preceding  note. 

4  Rumsey  v.  Berry,  65  Me.  670;  Williams  v.  Carr,  80  N.  C.  94;  Sawyer 
etal.  ».  Taggert,  14  Bush,  727;  Gregory  v.  Wendall,  39  Mich.  337. 

5  Story  v.  Salomon,  supra. 

§  117 


476  REGULATION   OP  TRADES   AND   OCCUPATIONS. 

Earl,  J.,  said:  "On  the  face  of  the  contract  the  plain- 
tiff provided  for  the  contingency  that  on  that  day  he 
might  desire  to  purchase  the  stock,  or  he  might  desire  to 
sell  it,  and  in  either  case  there  would  have  to  be  a  delivery 
of  the  stock,  or  payment  in  damages  in  lieu  thereof.  We 
should  not  infer  an  illegal  intent  unless  obliged  to.  Such  a 
transaction,  unless  intended  as  a  mere  cover  for  a  bet  or 
wager  on  the  future  price  of  the  stock,  is  legitimate  and 
condemned  by  no  statute,  and  that  it  was  so  intended  was 
not  proved.  If  it  had  been  shown  that  neither  party  in- 
tended to  deliver  or  accept  the  shares,  but  merely  to  pay 
differences  according  to  the  rise  or  fall  of  the  market,  the 
contract  would  have  been  illegal."  TWs  rule  of  construc- 
tion is  adopted  by  most  of  the  courts,  in  determining  the 
legality  of  these  questionable  contracts,  but  a  different  rule 
has  been  laid  down  by  the  Supreme  Court  of  Wisconsin. 
The  contract,  which  constituted  the  subject  of  the  suit,  was 
in  form  a  legitimate  transaction,  and  there  was  no  proof 
that  it  was  used  as  a  cover  for  commercial  gambling.  The 
court  declared  it  to  be  the  duty  of  the  plaintiff  to  show 
that  he  had  made  a  bona  fide  contract  for  the  delivery  of 
the  commodities  bought  and  sold,  instead  of  throwing 
upon  the  defendant  the  burden  of  proving  that  the  contract 
was  made  for  the  payment  of  differences  in  price,  and  did 
not  contemplate  any  delivery  of  the  grain.  The  court 
claimed  that  it  would  "  not  do  to  attach  too  much  weight  or 
importance  to  the  mere  form  of  the  contract,  for  it  is  quite 
certain  that  parties  will  be  as  astute  in  concealing  their  in- 
tention, as  the  real  nature  of  the  transaction,  if  it  be  illegal." 
It  may  be  safely  assumed,  that  the  parties  will  make  such 
contracts  valid  in  form ;  but  courts  must  not  be  deceived 
by  what  appears  on  the  face  of  the  agreement.  It  is  often 
necessary  to  go  behind,  or  outside  of,  the  words  of  the 
contract  —  to  look  into  the  facts  and  circumstances  which 
attended  the  making  of  it  —  in  order  to  ascertain  whether 
it  was  intended  as  a  bona  fide  purchase  and  sale  of  the 
§  117 


OPTION    CONTRACTS,    WHEN    ILLEGAL.  477 

property,  or  was  only  colorable.  And  to  justify  a  court 
in  upholding  such  an  agreement,  it  is  not  too  much  to  re- 
quire a  party  claiming  rights  under  it,  to  make  it  satisfac- 
torily and  affirmatively  appear  that  the  contract  was  made 
with  an  actual  view  to  the  delivery  and  receipt  of  grain, 
not  as  an  evasion  of  the  statute  ngainst  gaming,  or  as  a 
cover  for  a  gambling  transaction."  1  The  power  of  the 
legislature  to  change  this  rule  of  construction,2  and  to  throw 
the  burden  of  proof  of  the  legality  of  the  contract  upon  the 
party  asserting  it,  cannot  be  questioned.  But  it  is  not 
within  the  power  of  the  court  to  change  it,  as  was  done  by 
the  Wisconsin  court.  For  the  effective  prevention  of  this 
commercial  gambling,  this  change  is  most  needful,  and  with 
one  other  regulation,  which  will  be  suggested  here,  the 
prohibition  can  be  made  as  effective  as  any  prohibition  of 
an  act,  which  operates  as  a  trespass  only  indirectly  through 
its  injurious  effects.  The  other  needful  regulation  would 
be  the  prohibition  of  all  contracts  of  sale  for  future  deliv- 
ery, where  the  vendor  has  neither  the  actual,  constructive, 
nor  potential  possession  of  the  goods  sold.  A  man  has  an 
absolute  right,  in  his  personal  or  representative  capacity, 
to  sell  for  future  delivery  any  goods  which  he  may  have  in 
his  actual  or  constructive  possession,  or  which  he  may  have 
the  present  capacity  of  acquiring  at  some  future  day. 
One  has  the  right  to  sell  commodities  which  he  has  pur- 
chased from  another  for  future  delivery,  or  to  sell  a  grow- 
ing or  other  future  crop,  or  the  flour  that  his  mill  will 
grind  during  a  stated  period.  But  one  can  serve  no  useful 
end  by  selling  goods  for  future  delivery,  goods  which  he 
does  not  own,  and  which  he  does  not  expect  to  possess. 
Such  future  contracts  may  therefore  be  prohibited.  With 
the  aid  of  this  legislation,  and  by  casting  the  burden  of 
proof  upon  him  who  asserts  the  legality  of  these  question- 

1  Barnard  ».  Backhous,  52  Wis.  593.     See,  to  the  same  effect,  Cobb  v. 
Prell,  15  Fed.  Rep.  774. 

2  Kiordanv.  Doty,  60S.  C.  637. 

§  117 


478  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

able  or  doubtful  contracts,  gambling  in  futures  may  be 
subjected  to  a  more  effective  restraint. 

§  118.  General  prohibition  of  contracts  on  the  ground 
of  public  policy.  —  In  the  preceding  sections,  we  have 
given  many  cases  of  contracts,  which  are  declared  to  be 
invalid,  because  their  enforcement  is  contrary  to  public 
policy,  for  more  or  less  satisfactory  reasons.  It  only  re- 
mains to  be  stated  generally,  that  whenever  a  contract  is 
made,  having  for  its  subject-matter  the  commission  of  some 
offense  against  the  law,  the  violation  of  some  rule  of 
morality,  or  the  commission  of  some  injury  to  the  public 
health,  the  contract  can  not  be  enforced ;  and  the  courts 
will  leave  the  parties  to  the  contract  and  their  property  in 
the  same  position  in  which  they  are  found.  No  right  of 
action  can  be  maintained,  which  has  the  invalid  contract  for 
a  legal  basis.  It  is  neither  possible  nor  advisable  in  this 
connection  to  refer  to  special  cases ;  the  principle  is  the 
same  in  all  cases,  and  the  whole  subject  will  be  found  dis- 
cussed in  all  of  the  numerous  treatises  upon  the  law  of 
contracts.1 

§  119.  Licenses.  —  It  is  the  common  custom  in  all  of  the 
towns  and  cities  of  the  United  States  to  require  the  pay- 
ment of  a  certain  sum  of  money  as  a  license,  for  the  priv- 
ilege of  prosecuting  one's  profession  or  calling.  The 
license  is  required  indiscriminately  of  all  kinds  of  occupa- 
tions, whatever  maybe  their  character,  whether  harmful  or 
innocent,  whether  the  license  is  required  as  a  protection  to 
the  public  or  not.  The  one  general  object  of  such  ordi- 
nances, as  a  whole,  whatever  other  reasons  may  be  assigned 
for  the  requirement  of  a  license  in  any  particular  occupa- 
tion, can  only  be  the  provision  of  a  reliable  source  of 
revenue.  It  is  one  of  *«  the  ways  and  means"  of  defraying 
the  current  expenses.  While  the  courts  are  not  uniform  in 

1  See,  also,  Benjamin  on  Sales,  and  Greenhood  on  Public  Policy. 

§  119 


LICENSES.  479 

the  presentation  of  the  grounds  upon  which  the  general 
requirement  of  a  license  for  all  kinds  of  employments  may 
be  justified  ;  on  one  ground  or  another,  the  right  to  impose 
the  license  has  been  very  generally  recognized.1  Whatever 
refinements  of  reasoning  may  be  indulged  in,  there  are  but 
two  substantial  phases  to  the  imposition  of  a  license  tax  on 
professions  and  occupations.  It  is  either  a  license,  strictly 
so-called,  imposed  in  the  exercise  of  the  ordinary  police 
power  of  the  State,  or  it  is  a  tax,  laid  in  the  exercise  of  the 
power  of  taxation.  In  many  cases  it  becomes  exceedingly 
important  to  determine  under  which  power  the  particular 
license  is  imposed.  For  example,  if  a  license  is  a  tax  the 
bill  must  originate  in  the  house  of  representatives,  accord- 
ing to  the  almost  universal  requirement  of  constitutional 
law.  But  if  it  is  a  police  regulation,  the  bill  providing  for 
it  is  constitutional  in  whichever  house  it  was  introduced.2 

For  examples,  I  will  refer  to  various  licenses  which  have 
been  imposed  upon  different  callings  and  trades  ;  and  it 
will  be  seen  by  a  perusal  of  the  cases,  that  the  courts  are 
not  always  clear  whether,  in  the  imposition  of  the  license, 
the  legislature  is  exercising  its  police  power  or  the  power 
of  taxation.  It  has  thus  been  held  to  be  reasonable  to 
exact  a  license  from  hucksters  and  peddlars.3  A  license 

1  Boston  v.  Schaffer,  9  Pick.  415;  Com.u.  Stodder,  2  Cush.  562;  Mayor 
of  New  York  v.  2nd  Ave.  R.  R.  Co.,  32  N.  Y.  261;  Brooklyn  v.  Breslin,  57 
N.  Y.  591;  State  v.  Hoboken,  33  N.  J.  L.  280;  Muhlenbrinck  v.  Com.,  42  N. 
J.L.  364  (36  Am.  Rep.  518);  Johnson   v.    Philadelphia,   60   Pa.  St.   445; 
Bennett  v.  Borough  of  Birmingham,  31  Pa.  St.  15;  State  v.   Roberts,    11 
Gill&  J.  606;  The  Germania  v.  State,  7   Md.    1;    Slaughter   ».   Com.,   13 
Gratt.  767;  Wynne  v.  Wright,  1  Dev.  &  B.  (N.  C.)  L.  19;  Home  Ins.   Co. 
v.  Augusta,  50  Ga.  530;  Savannah  v.   Charl'on,   36  Ga.   460;    Mayor  v. 
Phelps,27  Ala.  55;  Mays  v.   Cincinnati,    1   Ohio   St.   268;  Cincinnati  v. 
Bryson,  15  Ohio,  625;  Chilvers  v.  People,  11  Mich.  43;  State  v.  Herod, 
29  Invva,  123;  People  v.  Thurber,  13  111.  557;  Cairo  v.  Bross,  101  111.  475; 
Kniptr  v.  Louisville,  7  Bush,  599. 

2  Rankinv.  City  of  Henderson  (Ky.),  7  S.  W.  174;  State  v.  Wright, 
14  Oreg.  365. 

3  Dunham  v.  Rochester,  5  Cow.  462 ;  Muhlenbrinck  v.  Commissioners, 
42  N.  J.  L.  364;  Com.  v.  Brinton,  132  Pa.  St.  69;  States.  Harrington, 

§  119 


480  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

tax  has  been  held  to  be  reasonable  when  imposed  upon  ven- 
dors of  milk  —  evidently  as  a  police  regulation,  since  they 
are  prohibited  from  plying  their  calling  without  the  license  ;* 
upon  the  vendors  of  cigarettes,  —  evidently  justifying  the 
apparently  excessive  amount  of  the  license  by  the  consid- 
eration, that  the  sale  of  cigarettes  was  injurious  to  the  health 
of  those  who  smoke  them ; 2  upon  attorneys  and  physicians,3 
upon  bakers,4  bankers,6  hacks  and  drays  and  other  vehicles.6 

68  Vt.  622;  Frommer  v.  Richmond,  31  Gratt.  646;  State  v.  Richards, 
32  W.  Va.  348;  Huntington  v.  Cheesbro,  57  Ind.  74;  Mays  v.  Cincin- 
nati, 1  Ohio  St.  268;  Barling  v.  West,  29  Wis.  307;  St.  Paul  v.  Traegar, 
25  Minn.  248;  Temple  v.  Sumner,  51  Miss.  13;  Ex  parte,  Ah  Toy,  57  Cal. 
92.  In  State  v.  Harrington,  the  Vermont  statute  required  a  deposit 
of  $500  with  the  State  treasurer,  and  the  payment  of  $25,  as  a  condi- 
tion precedent  to  the  procurement  of  a  State  license.  The  deposit  of 
$500  was  required  as  a  guaranty  fund  against  fraud  and  violations  of 
of  the  law,  and  it  was  returned  to  the  itinerant  vendor  at  the  end  of 
the  year,  less  whatever  fines  and  penalties  may  have  been  Imposed  upon 
him  for  infractions  of  the  law.  The  Vermont  statute  evidently  consid- 
ered the  regulations  to  be  an  exercise  of  the  police  power,  and  not  of 
the  power  of  taxation.  In  Commonwealth  v.  Gardner,  133  Pa.  St.  284, 
the  licensing  of  peddlers  was  expressly  declared  to  be  an  exercise  of 
police  power.  The  same  ruling  was  expressly  made  in  State  ex  rel. 
Luria  v.  Wagener,  69  Minn.  206,  and  the  act  was  held  to  be  unconsti- 
tutional because  it  discriminated  against  certain  classes  or  kinds  of 
hawkers  and  peddlers.  See,  also,  generally ,  as  to  the  regulation  of  hawkers 
and  peddlers,  Kennedy  v.  People,  9  Colo.  App.  490;  Hall  v.  State,  39 
Fla.  637;  City  of  Carlisle  v.  Hechinger  (Ky.  '98),  45  S.  W.  358;  People  v. 
Baker,  115  Mich.  199;  Grand  Rapids  v.  Norman,  110  Mich.  544;  Kirkpatrick 
«.  Davis  Clock  Co.,  49  La.  Ann.  871 ;  State  v.  Rhyne,  119  N.  C.  905. 

1  People  v.  Mulholland,  19  Hun,  548;  s.  c.  82  N.  Y.  324;  Chicago  v. 
Bartree,  100  111.  57. 

2  Gundling  v.  City  of  Chicago,  176  111.  340. 

3  Simmons  v.  State,  12  Mo.  268;  St.  Louis  v.  Sternberg,  69  Mo.  289; 
State  v.  Hibbard,  3  Ohio,  33;  Savannah  v.  Charlton,  36  Ga.  460;  Wilder 
v.    Mayor    of  Savannah,  70  Ga.  760;  Young  v.    Thomas,  17    Fla.  169; 
Longville  ».  State,  4  Tex.  App.  312;  Bullitt  v.  City  of  Paducah  (Ky.), 
3  S.  W.  802. 

<  Mayor  &c.  of  Mobile  v.  Yuille,  3  Ala.  137. 

«  City  of  Oil  City  v.  Oil  City  Trust  Co.,  151  Pa.  St.  454;  State  v.  City 
of  Columbia,  6  Rich.  L.  404;  New  Orleans  v.  N.  O.  Sav.  Inst.,  32  La. 
Ann.  527. 

6  Brooklyn  v.  Breslin,  57  N.  Y.  591 ;  Frankfort  &c.  R.  R.  Co.   v.   Phil- 

§  HO 


LICENSES.  481 

So,  likewise,  may  a  license  tax  be  exacted  of  keepers  of 
places  of  amusements  of  all  kinds,1  of  dealers  in  second-hand 
articles,  and  pawn-shops,2  insurance  brokers,  whether  they 
are  residents,  or  come  from  another  State,8  auctioneers.4 
In  short,  the  State  has  the  power  to  impose  a  license  fee, 
either  as  a  tax  or  a  police  license,  upon  every  kind  of  busi- 
ness; of  course,  including  the  trade  in  intoxicating  liquors.5 
Where,  however,  a  State  in  the  exercise  of  the  police 
power,  lawfully  prohibits  a  certain  trade  or  calling,  the 
municipalities  cannot  give  a  lawful  license  to  carry  on  such 

adelphia,  58  Pa.  St.  562:  Commonwealth  ».  Matthews,  122  Mass.  60;  City 
Council  v.  Pepper,  1  Rich.  L.  364;  Cincinnati  v.  Bryson,  15  Ohio,  625; 
Little  v.  State,  8  Ohio  C.  C.  51:  St.  Louis  v.  Green,  70  Mo.  562; 
Logan  77.  Pyne,  43  Iowa,  524;  St.  Paul  v.  Smith,  27  Minn.  164;  Snyder 
t?.  North  Lawrence,  8  Kans.  82;  Bowser  v.  Thompson  (Ky.  '98),  45  S. 
W.  73.  Generally,  it  is  held  that  the  license  tax  cannot  be  imposed  upon 
private  vehicles,  at  least,  as  a  police  regulation.  St.  Chariest?.  Nolle,  61 
Mo.  122;  St.  Louis  v.  Grone,  46  Mo.  574;  Collingsville  v.  Cole,  78  111. 
114.  But  private  as  well  as  public  vehicles  may,  of  course,  be  taxed. 
Biddle  v.  Philadelphia  Ry.  Co.,  I  Pittsb.  Leg.  J.  79;  Knoxville  v.  Sanford, 
13  Lea,  545;  Edenton  w.  Capeheart,  71  N.  C.  156;  Frommer  v.  Rich- 
mond, 31  Va.  646;  Bates  v.  Mobile,  46  Ala.  158. 

1  New  York  v.  Eden  Muse"e  American  Co.,  102   N.   Y.   593;  Com.  v. 
Gee,  6  Cush.  174;  Germania  v.  State,  7  Md.  1;  State  v.  Miller,  93  N.  C. 
511;  State  v.  Schonhausen,  37  La.  Ann.  42;  Charity  Hospital  u.  Stickney. 

2  La.  Ann.  550;  Mabry  v.  Tamer,  1  Humph.  94. 

2  Marmet  ».  State,  45  Ohio  St.  63;  City  of  Grand  Rapids  v.   Braudy, 
105  Mich.  670. 

8  Commonwealth  v.  Roswell  (Mass.  '99),  63  N.  E.  132. 

4  Wiggins  v.  Chicago,  68  111.  372;  Decorah  v.  Dunstan,  38  Iowa,  96; 
Fretwell  v.  Troy,  18  Kans.  271. 

6  Licensing  of  liquor  trade.  State  v.  Cassidy,  22  Minn.  312  (21  Am. 
Rep.  767) ;  Bancroft  v.  Dumas,  21  Vt.  456;  State  v.  Brown,  19  Fla.  563; 
Lewellenv.  Lockhardts,  21  Gratt.  570;  Hirshw.  State,  21  Gratt.  785;  Wiley 
v.  Owens,  39  Ind.  429;  Pleuler  v.  State,  11  Neb.  547;  State  v.  Harris,  10 
Iowa,  441;  Hammond  u.  Haines,  25  Md.  541;  Trustees  v.  Keeting,  4 
Denio,  341;  Town  Council  v.  Harbers,  <5  Rich.  L.  96;  State  v.  PI unkett, 

3  Harr.  (N.  J.  )  6;  Burckholter  v.  McConnellsville,  20  Ohio  St.  308;  State 
».  Sherman,  20  Mo.  265;  State  ex  rel.  Troll  v.  Hudson,  78  Mo.  302;  Gun- 
narssohn  v.  Sterling,  92  111.  669;  East  St.  Louis  v.  Wehrung,  46  111.  392; 
Hill  v.  Decatur,  22  Ga.  203 ;  Youngblood  v.  Sexton,  32  Mich.  406  (20  Am. 
Rep.  654). 

31  §    119 


482  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

a  calling.1  And  if  a  trade,  such  as  the  liquor  trade,  has 
been  licensed,  the  enactment  of  a  prohibitive  law  repeals  the 
license.*  So,  also,  the  fact  that  the  United  States  Govern- 
ment has  granted  a  license  to  sell  oleomargarine,  does  not 
permit  one  to  sell  the  article  in  a  State,  in  opposition  to  a 
State  law  which  prohibits  it  altogether.3 

The  distinction  between  a  license  fee,  imposed  in  the 
exercise  of  the  police  power,  and  a  license  tax  levied  in 
the  exercise  of  the  taxing  power,  should  be  clearly  ex- 
plained and  fully  set  forth. 

In  preceding  sections,  it  has  been  explained  how  the  right 
to  pursue  the  ordinary  callings  of  life  exists  independently 
of  government,  and  the  pursuit  of  them  can  only  be  so  far 
restrained  and  regulated,  as  such  restraint  and  regulation 
may  be  required  to  prevent  the  doing  of  damage  to  the  pub- 
lic or  to  third  persons.  Where  the  calling  is  not  dangerous 
to  the  public,  either  directly  or  incidentally,  it  cannot  be  sub- 
jected to  any  police  regulation  whatever  which  does  not 
fall  within  the  power  of  taxation.  But  those  occupations 
which  require  police  regulation,  because  of  their  pecu- 
liar character,  in  order  that  harm  might  not  come  to  the 
public,  can  be  subjected  to  whatever  police  regulation 
may  be  necessary  to  avert  the  threatened  danger.  Among 
other  measures,  that  would  be  justifiable  in  such  cases,  would 
be  a  more  or  less  rigid  police  supervision  of  those  who  may 
be  permitted  to  pursue  the  calling.  Hence,  it  would  be 
lawful  and  constitutional  for  the  State  or  town  to  require  all 
those  who  follow  such  a  vocation  to  take  out  a  license. 
On  this  principle,  attorneys,  physicians,  druggists,  engineers 
and  other  skilled  workmen,  may  be  required  to  procure  a 

1  In  re  Garza,  28  Tex.  App.  381  (houses  of  ill-fame;  power  to  license 
must  be  expressly  conferred ) . 

*  Voighto.  Board  of  Excise  Comrs.,  69  N.  J.  L.  358;  Ex  parte  Will- 
iams, 31  Tex.  Cr.  Rep.  262;  City  of  St.  Charles  v.  Hackman,  133  Mo.  634; 
State  ex  rel.  Dickason  v.  Marion  Co.  Court,  128  Mo.  427. 

8  Commonwealth  v.  Crane,  158  Mass.  218. 

§  119 


LICENSES.  483 

license,  which  would  certify  to  their  fitness  to  pursue  their 
respective  callings,  in  which  professional  skill  is  most  nec- 
essary, and  in  which  the  ignorance  of  the  practitioner  is 
likely  to  be  productive  of  great  harm  to  the  public,  and  to 
individuals  coming  into  business  relations  with  them.  So, 
also,  the  licensing  of  dramshops,  green  groceries,  hackmen 
and  the  like,  is  justifiable,  in  order  that  these  callings  may 
be  effectually  brought  within  the  police  supervision,  which 
is  necessary  to  prevent  the  occupation  becoming  harmful  to 
the  public.  The  dramshop  is  likely  to  gather  together  the 
more  or  less  disreputable  and  dangerous  classes  of  society  ; 
the  green  grocers  are  likely,  if  not  honest,  to  sell  to  their 
customers  meat  that  is  stale  and  unhealthy  ;  and  the  hack- 
men  are  inclined,  if  not  watched  by  the  public  authorities, 
to  practice  frauds  upon  the  public  against  which  they  can- 
not very  well  protect  themselves  without  police  aid.  In 
the  regulation  of  all  such  occupations,  it  is  constitutional  to 
require  those  who  apply  for  a  license  to  pay  a  reasonable 
sum  to  defray  the  expense  of  issuing  the  license  and  of  main- 
taining the  police  supervision.  What  is  a  reasonable  sum 
must  be  determined  by  the  facts  of  each  case;  but  where  it 
is  a  plain  case  of  police  regulation,  the  courts  are  not  in- 
clined to  be  too  exact  in  determining  the  expense  of  pro- 
curing the  license,  as  long  as  the  sum  demanded  is  not 
altogether  unreasonable.1  But  where  the  license  tax  is 
imposed  upon  a  business  which  is  wholly  or  in  large  part 
interstate  commerce,  it  cannot  be  sustained  as  a  police 

1  Boston  v.  Schaffer,  9  Pick.  415;  Welch  v.  Hotchkiss,  39  Conn.  140; 
Johnson  v.  Philadelphia,  60  Pa.  St.  445 ;  State  v.  Hoboken,  41  N.  J.  L.  71 ; 
Ash  v.  People,  11  Mich.  347;  Van  Baalen  v.  People,  40  Mich.  458 ;  Burling- 
ton o.  Putnam  Ins.  Co.,  31  Iowa,  102.  Thus  a  license  tax  of  $300  was 
imposed  upon  packers  and  canners  of  oysters,  and  it  was  held  to  be  rea- 
sonable. State  ».  Applegarth,  81  Md.  293.  So,  also,  a  State  license  tax 
of  $300,  imposed  upon  hawkers  and  peddlers,  was  sustained  in  Florida. 
Hall  v.  State,  39  Fla.  637.  And  a  city  license  tax  of  $15  on  the  same  class 
was  sustained  as  reasonable  in  Michigan.  Grand  Rapids  v.  Norman,  110 
Mich.  544. 

§  119 


484  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

regulation  if  it  so  exceeds  in  amount  the  needs  of  a  license 
fee,  as  a  police  regulation,  as  to  amount  to  a  restriction 
upon  interstate  commerce.  It  is  for  that  reason  unconsti- 
tutional.1 

The  evils,  growing  out  of  some  occupations,  may  be 
such  that  their  suppression  can  only  be  attained  to  any 
appreciable  degree  by  the  imposition  of  a  restraint 
upon  the  pursuit  of  such  callings  or  kinds  of  busi- 
ness. For  example,  the  keeping  of  saloons  produces 
public  evil  in  proportion  to  the  number  of  low  groggeries, 
which  are  allowed  to  be  opened ;  and  in  any  event  the  evil  is 
lessened  by  reducing  the  number  of  saloons  of  all  grades  of 
respectability.  One  of  the  most  effective  modes  of  restrain- 
ing and  limiting  the  number  of  saloons  in  any  particular 
town  or  city  is  to  require  a  heavy  license  of  the  keepers  of 
them.  Such  a  license  may,  probably,  be  justified  on  the 
ground  that,  since  the  prosecution  of  the  business  entails 
more  or  less  injury  upon  society,  it  is  but  just  that  those 
who  make  profit  out  of  the  traffic  should  bear  the  burden  of 
liquidating  the  damage  done  to  the  public  in  the  form  of 
increased  pauperism  and  crime.  In  Minnesota,  an  act  pro- 
vided for  the  payment  of  a  license  by  all  keepers  of  saloons 
and  dramshops,  which  would  be  devoted  to  the  establish- 
ment of  a  fund  for  the  foundation  and  maintenance  of  an 
asylum  for  inebriates.  In  declaring  the  act  to  be  constitu- 
tional ,  the  court  advanced  the  following  reasons  in  support  of 
it:  "  It  is  very  apparent  from  its  provisions,  that  the  law  in 
effect  is  one  further  regulating  traffic  in  intoxicating  drinks. 
Such  is  manifestly  one  of  its  objects,  and  its  principal 
features  and  provisions  accord  with  this  idea.  It  requires 
of  those  desiring  to  prosecute  business  the  procuring  of  a 

1  See  Brimmer  v.  Rebman,  138  U.  S.  78;  Harmon  ».  City  of  Chicago, 
147  U.  S.  396;  In  re  Lebolt,  77  Fed.  587;  Booth  v.  Lloyd,  33  Fed.  593; 
Willis  v.  Standard  Oil  Co.,  50  Minn.  290;  Webster  v.  Bell,  68  Fed.  183; 
15  C.  C.  A.  360;  City  of  San  Bernardino  v.  Southern  Pacific  Co.,  107  Cal. 
524.  But  see  Henderson  Bridge  Co.  v.  Com.  (Ky.),  31  S.  W.  486. 

§  119 


LICENSES.  485 

special  license  as  a  condition  precedent  to  the  exercise  and 
enjoyment  of  such  a  right.  It  regards  the  traffic  as  one 
tending  to  produce  intemperance,  and  as  likely,  by  reason 
thereof,  to  entail  upon  the  State  the  expense  and  burden  of 
providing  for  the  class  of  persons  rendered  incapable  of  self- 
support,  the  evil  influence  of  whose  presence  and  example 
upon  society  is  necessarily  injurious  to  the  public  welfare 
and  prosperity,  and,  therefore,  calls  for  such  legislative 
interposition  as  will  operate  as  a  restraint  upon  the  busi- 
ness, and  protect  the  community  from  the  mischief,  evils 
and  pecuniary  burthens  following  from  its  prosecution. 
To  this  end  the  special  license  is  required,  and  the  business 
restricted  to  such  persons  as  are  willing  to  indemnify  the 
State,  in  part,  against  its  probable  results  and  consequences, 
by  contributing  toward  a  fund  that  shall  be  devoted  exclu- 
sively to  that  purpose  in  the  manner  indicated  in  the  act. 
That  these  provisions  unmistakably  partake  of  the  nature 
of  police  regulations,  are  strictly  of  that  character,  there 
can  be  no  doubt,  nor  can  it  be  denied  that  their  expediency 
or  necessity  is  solely  a  legislative,  and  not  a  judicial, 
question. 

"  Regarding  the  law  as  a  precautionary  measure,  intended 
to  operate  as  a  wholesome  restraint  upon  a  traffic,  and  as  a 
protection  to  society  against  its  consequent  evils,  the  exacted 
fee  is  not  unreasonable  in  amount,  and  the  purpose  to 
which  it  is  devoted  is  strictly  pertinent  and  appropriate. 
It  could  not  be  questioned  but  that  a  reasonable  sum  im- 
posed in  the  way  of  an  indemnity  to  the  State  against  the 
expense  of  maintaining  the  police  force  to  supervise  tho 
conduct  of  those  engaged  in  the  business  and  to  guard 
against  disorders  and  infractions  of  law  occasioned  by  its 
prosecution,  would  be  a  legitimate  exercise  of  police  power, 
and  not  open  to  the  objection  that  it  was  a  tax  for  the  pur- 
pose of  revenue,  and  therefore  unconstitutional.  Reclaim- 
ing the  inebriate,  restoring  him  to  society,  prepared  again 
to  discharge  the  duties  of  citizenship,  equally  promotes 

119 


486  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

the  public  warfare  and  tends  to  the  accomplishment  of  like 
beneficial  results,  and  it  is  difficult  to  see  wherein  the  im- 
position of  a  reasonable  license  fee  would  be  any  less  a 
proper  exercise  of  the  power  in  one  case  than  in  the 
other."  1 

But  that  disposition  of  the  license  fees  is  not  necessary  as  a 
justification  of  the  law  which  exacts  them.  The  money,  col- 
lected by  way  of  a  license  as  a  police  regulation,  may  go  into 
the  State  treasury  for  general  revenue  purposes,  and  need  not 
be  devoted  specially  to  the  relief  of  burdens  which  the  prose- 
cution of  the  trade  or  occupation  imposed  on  the  State, 
provided  that  the  character  of  the  occupation  is  such  that 
restrictions  upon  its  pursuit,  looking  to  its  partial  suppres- 
sion, would  be  constitutional,  whatever  their  character  may 
be.  Since  the  primary  object  of  such  a  law  would  be  to 
operate  as  a  restriction  upon  the  trade,  and  not  to  raise  a 
revenue,  the  incidental  increase  in  the  revenue  would 
constitute  no  valid  objection  to  the  law.2 

1  State  v.  Cassidy,  22  Minn.  312  (21  Am.  Rep.  765). 

2  Youngblood  v.  Sexton,  32  Mich.  406  (20  Am.  Rep.  654);  Carter  t>. 
Dow,  16  Wis.  299;  Tenny  v.  Lanz,  16  Wis.  566.     "  In  granting  licenses, 
the  items  which  may  be  taken  into  consideration  as  elements  fixing  the 
costs  of  the  same,  would  seem  to  be  about  as  follows :  First,  the  value 
of  the  labor  and  material  in  merely  allowing  and  issuing  the  license ; 
second,  the  value  of  the  benefit  of  the  license  to  the  person  obtaining  the 
same;  third,  the  value  of  the  convenience  and  cost  to  the  public  in  pro- 
tecting such  business  and  in  permitting  it  to  be  carried  on  in  the  com- 
munity; fourth,  and  in  some  cases  an  additional  amount  imposed  as  a 
restraint  upon  the  number  of  persons  who  might  otherwise  engage  in 
the  business.    None  of  these  items  contemplates,  except  incidentally, 
the  raising  of  revenue  for  general  purposes.    In  many  cases,  the  license, 
which,  if  issued  for  the  proper  purposes  would  be  valid,  would  not  be 
valid  if  issued  merely  for  the  purpose  of  obtaining  or  increasing  the  gen- 
eral revenue  fund."    Leavenworth  v.  Booth,  15  Kan.  627.    "  It  is  no 
doubt  true  that  the  city  was  empowered  to  resort  to  other  means  of  re- 
straint (than  requiring  heavy  licenses  of  saloon  keepers)  such  as  requir- 
ing such  houses  to  be  orderly,  and  in  other  respects  to  conform  to  such 
ordinances  as  might  be  adopted  to  properly  restrain  the  business;  but 
the  fact  that  they  had  other  powers  conferred  for  this  purpose  in  nowise 
prevented  the  city  from  exercising  the  power  to  restrain  the  general  free 

§  119 


LICENSES.  487 

The  amount  demanded  for  the  license,  in  such  a  case, 
would  be  determinable  by  the  legislature.  It  would  be  a 
legislative,  and  not  a  judical  question.1  But  it  is  a  judicial 
question  whether  the  particular  occupation  or  trade  can, 
under  the  constitutional  limitations,  be  restrained.2  One, 
desiring  to  practice  law  or  medicine,  can  be  required  to 
obtain  a  license  from  some  court  or  other  State  authority, 
to  which  he  is  entitled,  after  passing  a  satisfactory  examina- 
tion into  his  qualifications  for  the  profession ;  and  he 
can  be  required  to  pay  a  small  fee  to  cover  the  expense 
incurred  in  issuing  the  license;  but  he  could  not  be  right- 
fully compelled  to  pay  a  large  amount,  exacted  of  him 
with  a  view  to  reduce  the  number  of  the  practitioners  of 
these  professions,  although  they  may  be  overcrowded.  A 
green  grocer  may  be  required  to  take  out  a  license,  in  order 
that  the  proper  police  supervision  may  be  maintained  over 
his  business  to  prevent  the  sale  of  unwholesome  meat;  and 
he  may  be  required  to  pay  a  reasonable  sum  to  defray  the 
expenses  of  this  necessary  police  inspection  ;  but  the  num- 
ber of  green  grocers  cannot  be  restrained  by  requiring  a 
large  sum  in  payment  for  his  license.  In  order  to  justify 
a  restrictive  license,  the  business  must  itself  be  of  such  a 
nature  that  its  prosecution  will  do  damage  to  the  public, 
whatever  may  be  the  character  and  qualifications  of  those 
who  engage  in  it.  Such  would  be  the  keeping  of  a  saloon 
or  dramshop.3  Once  having  been  judicially  ascertained 
that  the  trade  or  occupation  may  be  restrained,  it  is  a 
matter  of  legislative  discretion  what  kind  of  restraint 

sale  of  liquors  by  requiring  that  a  license  should  be  obtained  before  it 
could  be  sold."  Mt.  Carmel  v.  Wabash,  50  111.  69;  Emporia  v.  Volmer, 
12  Kan.  622;  Adler  v.  Whitbeck,  44  Ohio  St.  539;  Portwood  v.  Baskett, 
64  Miss.  213. 

1  See  McBride  v.  State  Revenue  Agent,  70  Miss.  716;  Marmet  v.  State, 
45  Ohio  St.  63,  where  the  tax  was  graded  according  to  the  volume  of  the 
business. 

2  But  see  contra  City  of  Oil  City  v.  Oil  City  Trust  Co.,  161  Pa.  St.  454. 
8  See  post,  §  125. 

§  119 


488  REGULATION   OF    TRADES    AND    OCCUPATIONS. 

should  be  imposed.  The  prosecution  of  the  trade  then  be- 
comes a  privilege,  for  which  as  large  a  price  can  be  de- 
manded by  the  State  as  it  may  see  fit.  And  it  may  be 
withheld  or  granted  at  the  discretion  of  the  State.1 

So,  likewise,  discriminations  are  in  such  cases  allowed  on 
grounds  of  public  policy,  which  would  not  be  permissible 
in  the  case  of  a  harmless  and  unobjectionable  occupation, 
upon  which  it  is  proposed  to  impose,  under  the  taxing 
power,  a  license  tax.  Thus,  we  have  in  an  earlier  section  2 
seen  that  it  is  permissible  for  a  law  to  prohibit  the  em- 
ployment of  females  in  drinking  saloons  or  bar-rooms. 
There  is  such  a  law  in  California.  The  city  of  Stockton 
passed  an  ordinance  which  imposes  a  license  charge  of  $30 
per  quarter  upon  such  places  in  general,  but  exacted  a 
license  fee  of  $150  per  month  for  keeping  a  saloon  or  bar- 
room, wherein  a  female  acts  as  bartender,  actress,  dancer, 
singer,  etc.  The  discrimination,  in  the  amount  of  the  li- 
cense tax,  between  the  two  classes  of  saloons  was  held  not 
to  violate  the  constitutional  prohibition  of  all  discrimina- 
tions as  to  sex  in  the  pursuit  of  any  lawful  business.8  And 
an  ordinance  of  San  Francisco  denied  all  licenses  to  sell 
intoxicating  liquors  to  persons  who  have  females  em- 
ployed in  their  saloons  as  waitresses,  in  violation  of  the 
State  law.  The  ordinance  was  attacked  on  the  ground 
that  it  was  an  ex  post  facto  law.  It  certainly  would 
have  been  so  held,  if  it  related  to  the  exercise 
of  any  vested  or  natural  right.  But  since  the  char- 
acter of  the  saloon  business  is  such  that  it  has  been 
judicially  declared  to  be  subject  to  total  prohibition,  the 
granting  of  the  licenses  to  engage  in  that  business  rests 
in  the  discretion  of  the  legislature,  both  as  to  the  number 
and  as  to  the  character  of  the  persons,  to  whom  the  licenses 
shall  be  awarded.  And  so  it  was  held  in  this  San  Francisco 

1  In  re  Hoorer,  30  Fed.  51. 
s  §86. 

»  Ex  parte  Felchin,  96  Cal.  360. 
§  119 


LICENSES.  489 

case.1  But  it  must  not  be  understood  that  the  legislative 
discretion,  in  granting  and  withholding  a  license  to  do  any 
kind  of  business,  is  unlimited  and  is  uncontrolled  by  any 
fundamental  principles  of  justice  and  impartiality  towards 
individuals.  The  constitutional  principle  of  equality  and 
uniformity  as  to  all  parties,  who  come  within  the  operation 
of  the  law,  must  be  strictly  observed.  A  discrimination 
against  a  part  of  such  a  class,  by  the  confinement  of  the 
regulation  or  license  to  that  part,  and  the  exemption  of  the 
other  members  of  the  same  class  from  its  obligations,  would 
make  the  law  for  that  reason  unconstitutional,  unless  there 
was  some  justifiable  reason  for  the  discrimination,  and  of 
this  the  courts  are  the  final  judge.  Several  cases  of  this 
kind  may  be  cited.  Thus,  a  law  has  been  held  in  Minnesota 
to  be  unconstitutional  because  it  is  class  legislation,  in- 
volving unjust  discrimination,  in  that  it  required  a  license 
of  hawkers  and  peddlers  in  general,  but  excepted  from  its 
provisions  "any  manufacturer,  mechanic,  nurseryman, 
farmer,  butcher,  *  *  *  selling,  as  the  case  may  be,  his 
manufactured  articles,  or  products  of  his  nursery  or  farm  or 
his  wares,"  etc.  2  There  does  not  seem  to  be  any  substantial 
reason  why  this  distinction  should  be  made.  So,  likewise, 
in  a  North  Carolina  case,  an  act  was  held  to  be  unconstitu- 
tional which  imposed  a  license  fee  of  $1,000  upon  anyone 
who  was  engaged  in  the  business  of  hiring  labor  in  certain 
counties  of  the  State,  to  be  employed  outside  of  the 
State.3 

1  Foster  v.  Board  of  Police  Com'rs  of  San  Francisco,  102  Cal.  483. 

*  State  v.  Wagener,  69  Minn.  206.  But  see  contra  Sydow  v.  Territory 
(Ariz.),  36  P.  214,  as  to  the  validity  of  a  similar  law.  In  the  cases  of 
Weaver  v.  State,  89  Ga.  639;  Singer  Mfg.  Co.  v.  Wright,  97  Ga.  115,  the 
Supreme  Court  of  Georgia  sustained  the  constitutionality  of  license 
laws*  which  imposed  a  license  tax  upon  vendors  of  sewing  machines  who 
were  likewise  manufacturers,  and  exempted  from  the  required  license 
all  other  sewing  machine  vendors.  Notwithstanding  that  the  weight  of 
authority  seems  to  be  the  other  way,  I  am  satisfied  that  the  Minnesota 
case  is  sound  law.  * 

8  State  v.  Moore,  113  N.  C.  697. 

§  119 


490  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

In  a  California  county,  the  board  of  supervisors,  in  their 
regulations  of  private  asylums,  for  the  insane  and  those 
suffering  from  inebriety  and  nervous  diseases,  required,  inter 
alia,  that  no  license  be  given  to  any  one  to  carry  on  such 
a  business,  unless  (1)  the  buildings  are  fire-proof,  and  the 
grounds  adjoining  the  asylum  are  surrounded  by  a  wall 
at  least  eighteen  inches  thick  and  twelve  feet  high,  and  the 
entire  premises  are  located  at  least  four  hundred  feet  from 
any  dwelling  house  or  school  house,  (2)  that  no  license 
shall  be  granted  where  male  and  female  patients  are  cared 
for  in  the  same  building.  These  two  regulations  were  held 
to  be  void  because  they  were  an  unreasonable  and  arbi- 
trary exercise  of  the  police  power.1  This  is  an  especially 
strong  case  in  illustration  of  the  supervisory  power  of  the 
judiciary  over  legislative  police  regulations,  as  the  business 
is  one  that  could  be  prohibited  as  a  private  business,  with 
more  convincing  grounds  of  justification  than  can  ordinarily 
be  found  in  other  cases  of  governmental  monopolies.2 

The  antipathy  of  the  inhabitants  of  California  and  other 
Pacific  States  to  the  Chinese  has  caused  the  enactment  of 
some  very  unjustifiable  police  regulations,  which  were  de- 
signed to  drive  the  Chinese  out  of  those  States.  The 
Chinese  Exclusion  Act  has  already  been  referred  to.3  And 
other  regulations,  hostile  to  them,  have  been  discussed 
elsewhere.  Inasmuch  as  laundering  has  been  and  is 
still  their  chief  industry,  and  they  do  the  work  by 
hand,  in  Montana  and  probably  elsewhere,  discrimina- 
tions have  been  made  against  them  by  exacting  a  higher 
license  from  hand  laundries  than  is  required  of  the 
steam  laundries.  The  Montana  statute  imposed  a  license 
tax  of  $25  per  quarter  on  every  laundry,  except  steam, 
in  which  more  than  one  is  employed,  and  a  tax  of 
$15  per  quarter  on  steam  laundries.  The  State  Su- 

1  Ex  parte  Whitwell,  98  Cal.  273. 

2  See  ante,  §  45. 
s  See  §  58. 

§  119 


LICENSES.  491 

preme  Court  held  the  act  to  be  constitutional ; 1  while 
the  United  States  court  pronounced  it  unconstitutional, 
as  in  violation  of  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  in  that  it  denies  the  equal  protection 
of  the  laws.2  This  decision  of  the  United  States  District 
Court  will  undoubtedly  be  sustained  by  the  higher  courts, 
if  the  State  of  Montana  should  appeal.  For  in  a  somewhat 
similar  case,  an  ordinance  of  the  city  of  San  Francisco,  — 
which  was  by  no  means  so  unreasonable,  as  the  Montana 
statute,  in  its  restrictions  upon  the  laundry  business ;  and 
which  on  its  face  does  not  give  rise  to  any  strong  convic- 
tion that  the  motive  of  the  ordinance  was  an  unjust  dis- 
crimination against  the  Chinese,  —  was  declared  by  the 
Supreme  Court  of  the  United  States  to  be  unconstitutional.3 
The  ordinance  was  as  follows  :  " It  shall  be  unlawful,  from 
and  after  the  passage  of  this  order,  for  any  person  or  per- 
sons to  establish,  maintain  or  carry  on  a  laundry  within  the 
corporate  limits  of  the  city  and  county  of  San  Francisco 
without  having  first  obtained  the  consent  of  the  board  of 
supervisors,  except  the  same  be  located  in  a  building  con- 
structed of  brick  or  stone."  The  court  held  it  to  be  in 
violation  of  the  Fourteenth  Amendment  of  the  United  States 
Constitution,  because  it  gives  the  board  of  supervisors  the 
arbitrary  power  to  grant  or  withhold  licenses,  guided  and 
limited  by  no  general  rules. 

"  It  allows  without  restriction  the  use  for  such  purposes 
of  buildings  of  brick  or  stone ;  but  as  to  wooden  buildings, 

1  State  v.  French,  17  Mont.  54  (41  P.  1078). 

2  In  re  Yot  Sang,  75  Fed.  983. 

3  Ylck  Wo  v.  Hopkins,  118  U.  S.  356.     Statutes  have  been  sustained, 
which  imposed  a  prohibitive  license  tax  of  $1,000  upon  all  who  are  en- 
gaged in  "  gift  enterprises,"  i.  e.,  who  offer  prizes,  gifts  and  premiums, 
as  an  inducement  to  buy  their  goods.    Humes  v.  City  of  Fort  Smith, 
Ark.,  93  Fed.  857;  Lansburgh  v.  District  of  Columbia,  11  App.  D.  C.  512. 
This  prohibitive  legislation  is  based  upon  the  principle  that  the  gift  enter- 
prises are  inherently  fraudulent.    If  this  be  true,  which  I  doubt,  there 
can  be  no  question  of  the  soundness  of  the  position  of  the  courts,  in 
sustaining  these  statutes. 

§  119 


492  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

constituting  nearly  all  those  in  previous  use,  it  divides  the 
owners  or  occupiers  into  two  classes,  not  having  respect 
to  their  personal  character  and  qualifications  for  the 
business,  nor  the  situation,  nature  and  adaptation 
of  the  buildings  themselves,  but  merely  by  an  arbi- 
trary line,  on  one  side  of  which  are  those  who  are 
permitted  to  pursue  their  industry  by  the  mere  will 
and  consent  of  the  supervisors,  and  on  the  other  those 
from  whom  that  consent  is  withheld,  at  their  mere  will  and 
pleasure.  And  both  classes  are  alike  only  in  this,  that 
they  are  tenants  at  will,  under  the  supervisors,  of  their 
means  of  living.  The  ordinance  therefore,  also  differs  from 
the  not  unusual  case,  where  discretion  is  lodged  by  law  in 
public  officers  or  bodies  to  grant  or  withhold  licenses  to 
keep  taverns  or  places  for  the  sale  of  spirituous  liquors, 
and  the  like,  when  one  of  the  conditions  is  that  the  appli- 
cant shall  be  a  fit  person  for  the  exercise  of  the  privilege, 
because  in  such  cases  the  fact  of  fitness  is  submitted  to  the 
judgment  of  the  officer,  and  calls  for  the  exercise  of  a  dis- 
cretion of  a  judicial  nature." 

The  facts  clearly  showed  an  arbitrary  discrimination 
against  the  Chinese. 

On  the  other  hand,  a  State  law,  which  authorized  the 
issue  of  licenses  to  hawk  and  peddle  goods  and  wares,  to 
persons  who  are  physically  disabled,  but  prohibited  the  is- 
sue of  such  licenses  to  able-bodied  persons,  was  held  to  be 
a  reasonable  and  constitutional  exercise  of  police  power, 
with  the  reasonable  objects  of  suppressing  vagrancy,  and 
of  providing  a  means  of  livelihood  for  the  halt  and  blind.1 

In  respect  to  the  great  majority  of  employments  and 
occupations,  the  principles,  explained  above,  have  no  ap- 
plication whatever.  They  not  only  do  not  threaten  any 
evil  to  the  public,  but  their  prosecution  to  the  fullest  meas- 

1  Commonwealth  v.  Brinton,  132  Pa.  St.  62;  Commonwealth  v. 
Gardner,  133  Pa.  St.  284. 

§  119 


LICENSES.  493 

ure  of  success  is  a  public  blessing.  Instead  of  placing 
trades  in  general  under  restraints  and  police  regulations,  in 
which  a  license  would  be  required,  the  utmost  freedom  can 
best  attain  the  greatest  good  to  the  public.  When,  there- 
fore, we  see  municipal  corporations,  requiring  licenses  for 
the  prosecution  of  all  kinds  of  occupations  and  employ- 
ments ;  if  their  action  can  be  justified  at  all,  it  must  rest 
upon  some  other  grounds  than  as  a  police  regulation.  It 
can  only  be  justified  as  a  tax  upon  the  profession  or  call- 
ing. Having  the  natural,  inalienable  right  to  pursue  a 
harmless  calling,  he  cannot  be  required  to  take  out  a  li- 
cense before  he  can  lawfully  pursue  it.  For  what  is  a 
license?  "  The  object  of  a  license,"  says  Mr.  Justice 
Manning,1  **  is  to  confer  a  right  that  does  not  exist  with- 
out a  license,  and  consequently  a  power  to  license  involves 
in  the  exercise  of  it,  a  power  to  prohibit  under  pain  or 
penalty  without  a  license.  Otherwise  a  license  would  be 
an  idle  ceremony,  giving  no  right,  conferring  no  privilege, 
and  exempting  from  no  pain  or  penalty.  If  the  right 
existed  previous  to  the  law  requiring  the  license,  it  would 
not  exist  afterwards  without  a  license.  The  fact  that  a 
license  is  required  to  do  an  act,  is  of  itself  a  prohibition  of 
such  act  without  a  license."  2 

"A  proper  license  tax  is  not  a  tax  at  all  within  the 
meaning  of  the  constitution,  or  even  within  the  ordinary 
signification  of  the  word  <  tax.'  *  *  *  The  imposition 
ol'  a  license  tax  is  in  the  nature  of  the  sale  of  a  benefit,  or 
privilege,  to  the  party  who  would  not  otherwise  be  entitled 
to  the  same.  The  imposition  of  an  ordinary  tax  is  in  the 
nature  of  the  requisition  of  a  contribution  from  that  which 
the  party  taxed  already  rightfully  possesses." 

The  following  case,  from  the  Supreme  Court  of  Minne- 
sota, covers  the  ground  so  effectually,  in  presenting  the 

1  Chilvers  v.  People,  11  Mich.  43. 

2  Chilvers  v.  People,  11  Mich.  49. 

3  Leavenworth  v.  Booth,  16  Kan.  627. 

§  119 


494  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

distinction  between  a  *'  license  "  and  a  "  tax  "  upon  occu- 
pations, that  an  extensive  quotation  is  given  from  the 
opinion  of  the  court.  The  city  council  of  St.  Paul  had  by 
ordinance  required  a  license  fee  of  twenty-five  dollars  from 
every  huckster  of  vegetables,  who  plied  his  trade  in  the 
streets  of  the  city.  In  determining  whether  this  was  a 
license  or  a  tax,  the  court  said:  — 

"  It  is  apparent  that  provisions  of  this  section  are 
founded  upon  the  assumption  that  the  common  council,  un- 
der the  charter,  possesses  the  power  to  license  the  pursuit 
of  the  particular  calling  or  business  mentioned,  in  and  along 
the  streets  of  the  city,  and  to  prescribe,  as  an  incident 
thereto,  when  it  may  be  followed,  what  sum  shall  be  paid 
for  the  privilege,  and  also  to  prohibit  the  business  entirely 
without  a  license,  as  an  efficient  means  for  the  protection  and 
enjoyment  of  the  power  itself.  The  ordinance  is  in  en- 
tire harmony  with  this  view  and  no  other.  It  was  not 
passed  as  suggested  by  counsel,  by  virtue  of  any  power  of 
supervision  and  control  over  streets,  because  powers  of  that 
character  are  conferred  for  the  sole  purpose  of  putting 
and  preserving  the  public  streets  in  a  fit  and  serviceable 
condition,  as  such,  by  keeping  them  in  repair  and  free  from 
all  obstructions  and  uses  tending  in  any  way  to  the  hinder- 
ance  or  interruption  of  public  travel,  and  to  that  end  alone 
can  they  be  exercised.  The  ordinance  in  question  has  no 
such  object  in  view.  On  the  contrary,  it  expressly  author- 
izes the  use  of  the  public  streets  for  the  purposes  of  the 
licensed  traffic  during  that  portion  of  each  day,  when  ordi- 
narily the  travel  is  the  greatest,  and  when  such  traffic  would 
be  most  likely  to  interfere  with  the  free  and  uninterrupted 
passage  of  vehicles  and  footmen,  and  it  contains  no  provis- 
ion in  any  way  restricting,  or  calculated  to  regulate,  the 
manner  in  which  the  licensed  business  shall  be  conducted  as 
to  occasion  the  least  public  inconvenience.  It  cannot  be 
claimed  that  it  was  enacted  in  the  exercise  of  any  police 
power  for  sanitary  purposes,  or  for  the  preservation  of  good 
§  119 


LICENSES.  495 

order,  peace  or  quiet  of  the  city,  because  neither  upon  its 
face,  nor  upon  any  evidence  before  us,  does  it  appear  that 
any  provision  is  made  for  the  inspection  of  any  articles  sold 
or  offered  for  sale  under  the  license,  or  for  preventing  the 
sale  of  any  decayed  or  unwholesome  vegetables  ;  nor  is  there 
any  restraint  or  regulation  whatever,  imposed  upon  the  con- 
duct of  the  business  during  the  time  it  is  permitted  to  be 
prosecuted.  The  annual  sum  exacted  for  the  license  is  man- 
ifestly much  in  excess  of  what  is  necessary  or  reasonable  to 
cover  expenses  incident  to  its  issue.  The  business  itself  is 
of  a  useful  character,  neither  hurtful  nor  pernicious,  but 
beneficial  to  society,  and  recognized  as  rightful  and  legiti- 
mate, both  at  common  law  and  by  the  general  laws,  of  the 
State.  No  regulations  being  prescribed  in  reference  to  its 
prosecution  under  the  license,  there  could  be  little,  if  any, 
occasion  for  the  exercise  of  any  police  authority,  in  super- 
vising the  business  or  enforcing  the  ordinance,  and  no  cause 
for  any  considerable  expense  on  that  account.  In  view  of 
these  facts,  it  is  quite  obvious  that  the  amount  of  the 
license  fee  was  fixed  with  reference  to  revenue  purposes, 
which  it  was  the  main  object  of  the  ordinance  to  promote, 
by  means  of  a  tax  imposed  upon  the  particular  employment 
or  pursuit,  through  the  exercise  of  its  power  over  the  sub- 
ject of  granting  license."  * 

It  is,  therefore,  conclusive,  that  the  general  requirement 
of  a  license,  for  the  pursuit  of  any  business  that  is  not  dan- 
gerous to  the  public,  can  only  be  justified  as  an  exercise  of 
the  power  of  taxation,  or  the  requirement  of  a  compensa- 
tion for  the  enjoyment  of  a  privilege  or  franchise.  In  re- 
spect to  the  latter  ground,  no  substantial  objection  can  be 

1  St.  Paul  v.  Traeger,  25  Minn.  248.  See,  also,  Mayor  v.  2nd  Ave.  R. 
R.  Co.,  32  N.  Y.  261;  Kip  v.  Paterson,  26  N.  J.  298;  State  v.  Hoboken,  41 
N.  J.  71;  Commonwealth  v.  Stodder,  2  Cush.  662;  Johnson  v.  Philadel- 
phia, 60  Pa.  St.  445 ;  Muhlenbrinck  o.  Commissioners,  42  N.  J.  364  (36 
Am.  Rep.  518) ;  State  v.  Roberts,  11  Gill  &  J.  506;  Home  Ins.  Co.  v.  Au- 
gusta, 50  Ga.  530;  Burlington  v.  Bumgardner,  42  Iowa,  673;  Cairo  v. 
Bross,  101  111.  475;  Mayor  o.  Cincinnati,  1  Ohio  St.  268. 

§  119 


496  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

well  laid  to  the  requirement  of  a  license.  When  the  State 
grants  a  franchise,  it  may  demand,  as  a  consideration  for 
its  grant,  some  special  compensation,  and  afterwards  tax 
it  as  property  ad  valorem.  Thus  insurance  companies,  es- 
tablished by  charter  from  one  State,  have  no  natural  right 
to  carry  on  business  in  any  other  State,  and  permission  to 
do  so  is  a  privilege  for  which  the  payment  of  a  substan- 
tial sum  as  license  may  be  required.1  And,  on  the  same 
general  principle,  has  it  been  held  lawful  to  require  a  license 
tax  of  owners  of  house-boats,  which  are  kept  on  navigable 
rivers.2 

The  right  of  the  State  to  tax  professions  and  occupa- 
tions, unless  there  is  some  special  constitutional  prohibition 
of  it,  seems  to  be  very  generally  conceded.  Judge  Cooley 
says:  "Taxes  may  assume  the  form  of  duties,  imposts 
and  excises,  and  those  collected  by  the  national  government 
are  very  largely  of  this  character.  They  may  also  assume 
the  form  of  license  fees,  for  permission  to  carry  on  par- 
ticular occupations."  *  The  State  and  the  town  author- 

1  People  v.  Thurber,  13  111.  654 ;  Commonwealth  v.  Germania,  L.  I. 
Co.,  11  Phila.  553;  Walker  v.  Springfield,  94  111.  364;  State  v.  Lathrop,  10 
La.  Ann.  398;  Ex  parteConn,  13  Nev.  424;  Trustees  E.  F.  Fund  v.  Roome, 
93  N.  Y.  313;  N.  Y.  Board  of  Fire  Underwriters  v.  Whipple,  37  N.  Y.  8. 
712;  2  App.  Div.  361 ;  Leavenworth  v.  Booth,  15  Kan.  627.    So,  also,  as  to 
tax  on  agents  of  foreign  express  companies,  Crutcher  v.  Com.,  89  Ky.  6; 
Woodward  v.  Com.  (Ky.),  7  S.  W.  613. 

2  Robertson*.  Commonwealth  (Ky),  40  S.  W.  920. 

3  Cooley  Const.  Lim.  613;  Quid  v.  Richmond,  23  Gratt.  464  (14  Am. 
Rep.  139) ;  Commonwealth  ».  Moore,  25  Gratt.  951 ;  Gatlin  v.  Tarborso, 
78  N.  C.  419;  State  v.  Hayne,  4  Rich.  L.  403;  Young  v.  Thomas,  17  Fla. 
169  (35  Am.  Rep.  328)  ;  Stewart  v.  Potts,  49  Miss.  949;  .State  v.  Endom, 
23  La.  Ann.  663;  New  Orleans  v.  Kaufman,  29  La.  283  (29  Am.  Rep.  328) ; 
Albrecht  v.  State,  8  Tex.  Ct.  App.  216  (34  Am.  Rep.   737) ;  Cousins  v. 
State,   59  Ala.   113  (20  Am.  Rep.   290);  Sweet  ».   Wabash,   41  Ind.  7; 
Youngblood  v.  Sexton,  32  Mich.  406  (20  Am.  Rep.  654);  Morrill  v.  State, 
38  Wis.  428  (20  Am.  Rep.  12) ;  Ex  parte  Frank,  52  Gal.  606  (28  Am.  Rep. 
642) ;  Ex  parte  Robinson,  12  Nev.  263.    In  Cincinnati  v.  Bryson,  15  Ohio, 
625,  Judge  Read,  in  a  dissenting  opinion,  denies  that  the  legislature  of 
Ohio  has  the  power  to  tax  occupations. 

§  119 


LICENSES.  497 

ities  may  impose  a  separate  tax  upon  the  same  occupation ; l 
and  the  fact,  that  the  property  used  in  trade  is  taxed  ad 
valorem,  does  not  constitute  any  objection  to  the  imposition 
of  a  license  tax  upon  the  business.2 

The  most  common  objection,  that  is  raised  to  the  enforce- 
ment of  a  license  tax,  is  that  it  offends  the  constitutional 
provision  which  requires  uniformity  of  taxation,  since  the 
determination  of  the  sum  that  shall  be  required  of  each  trade 
or  occupation  must  necessarily,  in  some  degree,  be  arbitrary, 
and  the  amount  demanded  more  or  less  irregular.  But  the 
courts  have  very  generally  held  that  the  constitutional  re- 
quirement as  to  uniformity  of  taxation  had  no  reference 
to  taxation  of  occupations.  "We  are  unable  to  perceive 
how  the  ordinance  in  question  violates  art.  127,  which  re- 
quires taxation  to  be  equal  and  uniform.  Its  words  are : 
*  all  keepers  or  owners  of  stables  where  horses  and  car- 
riages are  kept  for  hire,  etc.'  The  argument  seems  to  be 
that  the  business  of  defendant's  livery  stable  will  not  bear 
such  a  tax.  To  this  it  may  be  again  replied  —  this  does  not 
profess  to  be  a  tax  upon  capital  or  profits,  which  are  prop- 
erty ;  but  on  the  person  pursuing  a  certain  occupation. 
To  levy  such  a  tax  differently  upon  one  and  another  ia 
proportion  to  the  success  of  each  in  such  a  pursuit  would 
produce  the  very  inequality  of  which  the  defendants  com- 
plain. As  the  ordinance  stands,  all  are  taxed  alike."  3 

A  more  serious  question  is  the  character  of  the  remedies 

1  Webbe  v.  Commonwealth,  33  Gratt.  898. 

2  St.    Louis    v.    Green,  6  Mo.  App.  590;    Lewellen  v.  Lockharts,  21 
Gratt.  570;  Hirsh  v.  State,  21  Gratt.  785. 

3  Municipality  v.  Dubois,  10  La.  Ann.  56.     See,  also,  to  the  same  effect, 
Youngbloodv.  Sexton,  32  Mich.  406  (20  Am.  Rep.  654);  Gatlin  v  Tar- 
boro,  78  N.  C.  119;  Mayor,  etc.,  v.  Beasley,  1  Humph.  232;  Ex  parte 
Robinson,  12  Nev.  263;  State  w.  Endon,  23  La.  Ann.  663;  People  ».  Thur- 
ber,  13  111.  554;  State  v.  Applegarth,  81  Md.  293;  Weaver  v.  State,  89  Ga. 
639;  Singer  Mfg.  Co.  v.  Wright,  97  Ga.  115;  State  v.  Richards,  32  W.  Va. 
348;  Marmet  v.  State,  45  Ohio.  St.  63   (rate  of  license  graded  according 
to  volume  of  business);  Hall  v.  State,  39  Fla.  637;  State  v  Moore,  113 
N.  C.  697. 

32  §    119 


498  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

that  may  be  employed  for  the  collection  of  the  license  tax. 
Where  the  tax  is  laid  upon  property,  the  usual  remedy  is  a 
suit  at  law  and  a  sale  of  goods  necessary  to  liquidate  the  taxes 
due,  or,  in  the  case  of  real  property,  a  sale  of  the  property 
against  which  the  taxes  are  assessed.  And  a  sale  of  the 
goods  under  execution,  issued  on  a  judgment  for  the  license 
tax,  would  be  an  altogether  unobjectionable  remedy. 
When  the  tax  is  lawfully  laid  against  the  individual,  it 
becomes  a  debt  which,  like  any  other  kind  of  indebtedness, 
can  be  reduced  to  judgment,  and  satisfaction  obtained  by  a 
sale  under  execution  of  the  judgment  debtor's  goods.  But 
the  usual  remedy  is  to  make  the  payment  of  the  license  tax 
a  condition  precedent  to  the  lawful  prosecution  of  the 
business,  whether  the  license  is  executed  in  the  enforcement 
of  a  police  regulation,  or  as  means  of  raising  revenue.  As 
a  police  regulation  the  denial  of  the  right  to  engage  in  the 
business  before  taking  out  a  license  is  but  reasonable.  The 
license  operates  as  a  prohibition,  and  there  would  clearly 
be  no  constitutional  objection  to  a  law,  which  even  made 
it  penal  to  prosecute  the  business  without  a  license.1  But 
where  the  doing  of  business  without  a  license,  is  made  a 
criminal  offense,  all  the  requirements  in  the  criminal  law 
for  notice,  opportunity  to  be  heard,  and  other  safeguards 
against  injustice  and  wrongful  conviction,  should  be  required 

1  Goshen  v.  Kern,  63  Ind.  468.  In  this  case  the  occupation  was  that 
of  auctioneers.  In  the  case  of  peddling,  Huntington  ».  Cheesbro,  57 
Ind.  74;  Temple  v.  Sumner,  51  Miss.  13;  Ex  parte  Ah  Foy,  57  Cal.  92. 
Peddlers  are  sometimes  punished  criminally  for  plying  their  trade  with- 
out a  license.  Hall  v.  State,  39  Fla.  637;  Commonwealth  ».  Heckinger 
(Ky.  '98),  42  S.  W.  101.  The  same  prohibition  and  the  imposition  of  a 
fine  for  doing  business  without  a  license,  has  been  applied  to  the  business 
of  pawnbrokers,  and  dealers  in  second-  hand  articles.  Marmet  v.  State,  45 
OhiO'St.  63.  These  are  all  cases  of  undoubted  police  regulations.  And, 
probably,  as  a  means  of  preventing  adulteration  in  milk,  the  applica- 
tion of  the  same  rule  to  vendors  of  milk  would  be  equally  justifiable, 
and  such  vendors  be  prohibited  from  selling  milk  until  they  had  procured 
their  licenses.  See  to  that  effect,  People  v.  Mulholland,  19  Hun,  548; 
s.  c.  82  N.  Y.  324;  Chicago  v.  Bartree,  100  111.  57. 

§   119 


LICENSES.  499 

to  be  observed  in  order  to  make  the  license  law  constitu- 
tional. Such  a  law  was  held  to  be  unconstitutional,  which 
authorized  and  required  the  county  treasurer  upon  refusal 
to  take  out  a  required  license  "  to  seize  any  of  the  property 
upon  which  a  lien  is  hereby  created,  belonging  to  such 
person,  *  *  *  an(j  to  sell  the  same  in  the  manner 
provided  for  sheriffs;"  because  the  act  in  question  did 
not  provide  for  giving  notice  to  the  owner  of  the  seizure 
of  such  property.  This  was  declared  to  be  an  unconsti- 
tutional taking  of  property.1 

But  the  case  assumes  a  different  phase,  when  the  occu- 
pation is  merely  taxed,  and  not  licensed  in  the  strict  sense 
of  the  word.  Can  the  State  prohibit  the  prosecution  of  a 
trade  or  business  until  the  tax  is  paid?  Ordinarily  it  is 
conceded  that  this  remedy  may  be  adopted  for  the  effectual 
collection  of  the  tax.  Judge  Cooley  s;iys  : 2  "  What  method 
shall  be  devised  for  the  collection  of  a  tax,  the  legislature 
must  determine,  subject  only  to  such  rules,  limitations, 
and  restraints  as  the  constitution  may  have  imposed.  Very 
summary  methods  are  sanctioned  by  practice  and  prece- 
dent." In  a  note  on  the  same  page,  he  gives  among  the 
methods  of  collection  resorted  to,  the  following:  "  Making 
payment  a  condition  precedent  to  the  exercise  of  some 
legal  right,  such  as  the  institution  of  a  suit,  or  voting  at 
elections,  or  to  the  carrying  on  of  business;  requiring 
stamps  on  papers,  documents,  manufactured  articles,"  etc., 
and  the  United  States  government  has  employed  in  the  in- 
ternal revenue  service  a  large  force  of  detectives  whose 
duty  it  is  to  discover  and  bring  to  punishment  all  those 
who  are  engaged  in  the  manufacturing  of  distilled  spirits. 
The  right  of  the  United  States  government  to  make  the 
sale  and  manufacture  of  intoxicating  liquors  and  tobacco 
illegal,  unless  a  revenue  license  has  been  previously  ob- 


1  Chauvin  v.  Valiton,  8  Mont.  451. 
8  Const.  Lim.  645. 

§  119 


500  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

tainea,  and  the  tax  paid,  has  never  been  successfully  con- 
tested, although  the  prosecutions  for  the  violation  of  the 
law  have  been  frequent.1  But  the  right  of  the  States,  in 
taxing  the  professions,  to  make  the  payment  of  the  tax  a 
condition  precedent  to  the  lawful  pursuit  of  the  business  or 
profession,  has  been  questioned,  and  likewise  denied.2 

"The  popular  understanding  of  the  word  license  undoubt- 
edly is  a  permission  to  do  something  which  without  license 
would  not  be  allowable.  This  we  are  to  suppose  was  the 
sense  in  which  it  was  made  use  of  in  the  constitution.  But 
this  is  also  the  legal  meaning.  '  The  object  of  a  license,' 
says  Mr.  Justice  Manning,  '  is  to  confer  a  right  that 
does  not  exist  without  a  license.'  3  Within  this  definition, 
a  mere  tax  upon  a  traffic  cannot  be  a  license  of  the  traffic, 
unless  the  tax  confers  some  right  to  carry  on  the  traffic, 
which  otherwise  would  not  have  existed.  We  do  not 
understand  that  such  is  the  case  here.  The  very  act  which 
imposed  this  taxrepealed  the  previous  law,  which  forbade  the 
traffic  and  declared  it  illegal .  The  trade  then  became  lawful, 
whether  taxed  or  not ;  and  this  law,  in  imposing  the  tax,  did 
not  declare  the  trade  illegal  in  case  the  tax  was  not  paid. 
So  far  as  we  can  perceive,  a  failure  to  pay  the  tax  no  more 

1  See  Henderson's  Distilled  Spirits,  14  Wall.  44. 

2  «« What  is  a  license?    It  is  defined  to  be  a  right  given  by  some  com- 
petent authority  to  do  an  act  which,  without  such  authority,  would  be 
illegal.    The  position  of  a  city  then  is  that,  notwithstanding  Dr.  Charl- 
ton  has  a  license  from  the  State  to  practice  medicine  anywhere  in  the 
State,  yet  if  he  exercise  the  privilege  thereby  granted  in  the   city  of 
Savannah  without  a  license  from  the  city,  it  will  be  illegal.    In  other 
words  if  he  acts  under  a  license  from  the  State,  he  becomes  a  criminal. 
The  effect  of  which  is  to  elevate  the  ordinance  of  a  city  above  the  laws 
of  the  State.    *    *    *    Under  the  name  of  license  Dr.  Charlton  cannot 
be  prohibited  from  availing  himself,  in  the  city,  of  a  privilege  conferred 
on  him  by  the  State.    He  is  not  here  contesting  the  authority  of  the  city 
to  tax  him  for  practicing  his  profession ;  what  he  contends  for  is,  that  the 
city  shall  not  make  that  illegal  which  by  the  law  of  the  State  is  legal. 
We  see  no  good  reason  why  the  city  may  not  tax  the  practice  of  any  pro- 
fession within  the  corporate  limits."    Savannah  v.  Charlton,  36  Ga.  460. 

8  Chilvers  v.  People,  11  Mich.  43. 

§  119 


LICENSES.  501 

renders  the  trade  illegal  than  would  a  like  failure  of  a 
farmer  to  pay  a  tax  on  his  farm  render  its  cultivation  illegal. 
The  State  has  imposed  a  tax  in  such  a  case,  and  made 
such  provision  as  has  been  deemed  needful  to  insure  its 
payment ;  but  it  has  not  seen  fit  to  make  the  failure  to  pay 
a  forfeiture  of  the  right  to  pursue  the  calling.  If  the  tax 
is  paid,  the  traffic  is  lawful ;  but  if  not  paid,  the  traffic  is 
equally  lawful.  There  is  consequently  nothing  in  the  case 
that  appears  to  be  in  the  nature  of  license."  l 

While  practice  and  precedent  justify  this  summary  method 
of  collecting  the  tax  upon  occupations,  it  cannot  be  suc- 
cessfully denied  that  it  is  in  contravention  of  natural  right. 
Every  one  has  a  natural  right  to  pursue  any  innocent  call- 
ing, without  permission  from  the  government ;  and  while 
the  right  of  the  government  to  tax  an  occupation  may  be 
conceded,  the  imposition  of  the  tax  creates  only  a  debt  be- 
tween the  individual  and  the  State;  and  the  same  remedies 
may  be  pursued,  as  are  permissible  in  the  collection  of 
ordinary  debts.  In  cases  of  insolvency  of  the  individual, 
the  indebtedness  to  the  State  for  a  license  tax  may  be  given 
priority  of  payment;  a  very  summary  proceeding  may  be 
devised  for  reducing  the  license  tax  to  judgment,  and  secur- 
ing payment  by  a  levy  upon  the  goods  of  the  individual ;  2 
all  these  ordinary  and  special  remedies,  and  others  of  a 
like  character,  might  well  be  provided,  but  to  make  it  illegal 
to  pursue  a  trade  or  engage  in  an  occupation,  until  the  tax 
is  paid,  is  clearly  in  violation  of  those  fundamental  princi- 
ples of  civil  liberty,  which  are  recognized  and  guaranteed 
by  all  constitutional  governments.  The  State  may  make 
the  payment  of  taxes  generally,  or  of  poll  tax  in  particular, 
a  condition  precedent  to  the  exercise  of  the  right  of  suf- 
frage, for  that  is  generally  conceded  by  all  constitutional 
authorities  to  be  a  privilege,  and  not  a  natural  right.  But 

1  Cooley,  J.,  in  Youngblood  v.  Sexton,  32  Mich.  406. 

2  But  the  owner  must  receive  notice  of  the  levy  and  sale,  in  order  to 
make  the  proceeding  constitutional.     Chauvin  v.  Valiton,  8  Mont.  451. 

§  119 


502  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

the  pursuit  of  an  employment  or  business  is  a  natural  right, 
which  exists  independently  of  State  authority,  and  can  only 
be  abridged  by  the  exercise  of  the  police  power  of  the  State, 
in  the  imposition  of  those  restrictions  and  burdens  which 
are  necessary  to  prevent,  in  the  prosecution  of  the  trade  or 
business,  the  infliction  of  injury  upon  others.  The  collec- 
tion of  a  tax  does  not  come  within  the  exercise  of  police 
power  as  a  prohibitory  measure. 

Another  important  question,  in  connection  with  licenses, 
is  the  nature  of  the  right  or  privilege  acquired  by  a  license, 
strictly  so  called.  A  license  tax,  as  a  tax,  confers  no  right 
of  any  kind ;  it  simply  lays  a  burden  upon  an  occupation, 
and  creates  the  duty  to  pay  the  tax.  But  when  the  license 
fee  is  exacted  in  the  exercise  of  the  police  power  of  the 
State,  does  its  payment  give  to  the  owner  of  the  license  an 
irrevocable  right  to  pursue  the  trade  or  occupation,  subject 
to  no  further  restrictions  by  the  State?  The  question  has 
assumed  a  practical  form  in  determining  the  effect  of  the 
passage  of  a  law,  prohibiting  the  sale  of  intoxicating  liquor, 
upon  the  licenses  to  sell,  that  have  been  previously  granted, 
and  the  time  for  which  they  were  given  has  not  expired. 
Can  the  State,  after  granting  a  license  to  sell  intoxicating 
liquors  for  one  year,  during  that  year  revoke  the  license  by 
prohibiting  the  sale  altogether?  The  answer  must  depend 
upon  the  nature  of  the  right  acquired  by  the  license.  It 
has  been  repeatedly  held  that  a  subsequent  prohibition  law 
revokes  all  outstanding  licenses,  whatever  damage  might 
result  to  those  who,  relying  upon  the  license,  as  giving  the 
right  to  sell  during  the  year,  have  incurred  obligations  and 
expenses,  for  which  they  cannot  secure  any  proper  reim- 
bursement except  in  the  continued  enjoyment  of  the  license. 
But,  however  great  a  hardship  the  revocation  of  the  license 
may  happen  to  be  in  particular  cases,  since  the  license  is  an 
authority  to  do  what  is  otherwise  prohibited,  and  the  issue 
of  the  license  is  one  mode  of  exercise  of  the  police  power ; 
if  the  occupation  or  trade  can  be  prohibited  under  the  con- 
§  119 


LICENSES.  503 

stitutional  limitations,  because  of  the  injury  done  to  the 
public  in  its  prosecution,  the  license  must  be  held  to  have 
been  given  and  accepted,  subject  always  to  the  constant  ex- 
ercise of  the  police  power  in  the  interest  of  the  public,  the 
right  to  the  exercise  of  which  can  never  be  bartered  away 
by  any  legislative  enactment.  The  Court  of  Appeals  of 
New  York  gave  utterance  to  the  following  language,  in  ex- 
plaining the  right  to  revoke  licenses:  — 

"  These  licenses  to  sell  liquors  are  not  contracts  be- 
tween the  State  and  the  person  licensed,  giving  the  latter 
vested  rights,  protected  on  general  principles  and  by  the 
constitution  of  the  United  States  against  subsequent  legis- 
lation, nor  are  they  property  in  any  legal  or  constitu- 
tional sense.  They  have  neither  the  qualities  of  a  contract 
nor  of  property,  but  are  merely  temporary  permits  to  do 
what  otherwise  would  be  an  offense  against  a  general 
law.  They  form  a  portion  of  the  internal  police  system 
of  the  State ;  are  issued  in  the  exercise  of  its  police 
powers,  and  are  subject  to  the  direction  of  the  State  gov- 
ernment, which  may  modify,  revoke  or  continue  them  as 
it  may  deem  fit.  If  the  legislature  of  1857  had  declared 
that  licenses  under  it  should  be  irrevocable  (which  it  does 
not,  but  by  its  very  terms  they  are  revocable),  the  legis- 
latures of  subsequent  years  would  not  have  been  bound  by 
the  declaration.  The  necessary  powers  of  the  legislature 
over  all  subjects  of  internal  police,  being  a  part  of  the 
general  grant  of  legislative  power  given  by  the  constitu- 
tion, cannot  be  sold,  given  away,  or  relinquished.  Irre- 
vocable grants  of  property  and  franchises  may  be  made, 
if  they  do  not  impair  the  supreme  authority  to  make  laws 
for  the  right  government  of  the  State  ;  but  no  one  legis- 
lature can  curtail  the  power  of  its  successors  to  make  such 
laws  as  they  may  deem  proper  in  matters  of  police."  * 

1  Metropolitan  Board  v.  Barrie,  34  N.  Y.  657.  "  Nor  can  it  be  doubted 
that  the  legislature  has  the  power  to  prohibit  the  sale  of  spirituous  or 
fermented  liquors  in  any  part  of  the  State,  notwithstanding  a  party  to 

§  119 


504  REGULATION   OF    TRADES   AND    OCCUPATIONS. 

It  is  also  very  clear  that,  if  the  imposition  of  a  restric- 
tive license  is  conceded  to  be  constitutional,  the  govern- 
ment has  the  power  to  determine  what  persons,  and  how 
many,  shall  enjoy  the  privilege  of  a  license;  and  one 
who  is  denied  that  privilege  cannot  claim  that  his  consti- 
tutional rights  have  been  thereby  infringed.1 

By  the  same  course  of  reasoning  is  it  justified,  by  sub- 
sequent laws,  to  subject  the  licensed  occupation  to  further 
restrictions.  Thus  it  was  held  that  the  grant  of  a  license 
does  not  prevent  the  State  from  prohibiting  by  a  later 
law  the  sale  of  liquor  on  certain  specified  days,2  or  from 
prohibiting  licensed  saloons  being  open  after  a  certain  hour 
in  the  night,3  or  from  exacting  an  additional  license  tax.4 

§  120.  Prohibition  of  occupations  in  general.6  —  If  the 

police  regulation  of  trades  and  occupations  cannot  be  in- 

be  affected  by  the  law  may  have  procured  a  license,  under  the  general 
license  laws  of  the  State,  which  has  not  yet  expired.  Such  a  license  is  in 
no  sense  a  contract  made  by  the  State  with  the  party  holding  the  license. 
It  is  a  mere  permit,  subject  to  be  modified  or  annulled  at  the  pleasure  of 
the  legislature,  who  have  the  power  to  change  or  repeal  the  law  under 
which  the  license  was  granted."  Fell  v.  State,  42  Md.  71  (20  Am.  Rep. 
83) ;  Commonwealth  v.  Kingsley,  133  Mass.  578;  La  Croixa.  FairfleldCo. 
Comrs.,  49  Conn.  591;  Reed  v.  Beall,  42  Miss.  572;  Coulson  v.  Harris, 
43  Miss.  728;  Robertsons.  State,  12  Tex.  App.  541;  Schwuchon  v.  Chi- 
cago, 68  111.  444 ;  Prohibition  Amendment  Cases,  24  Kan.  700 ;  Voight  v. 
Board  of  Excise  Commissioners,  59  N.  J.  58;  City  of  St.  Charles  v, 
Hackman,  133  Mo.  634;  State  ex  rel.  Dickason  v.  Marion  Co.  Court,  128 
Mo.  427.  And  it  is,  likewise,  true  that  a  license  from  the  Internal  Rev- 
enue Department  of  the  United  States  government  to  carry  on  the 
business,  such  as  that  of  selling  oleomargarine,  does  not  give  one  a 
right  to  carry  on  such  business  in  violation  of  the  prohibitory  law  of  the 
State.  Commonwealth  v.  Crane,  158  Mass.  218. 

1  Plumb  v.  Christie,  103  Ga.  686;  Deal  v.  Singletary,  105  Ga.  466. 

2  Reichmuller  v.  People,  44  Mich.  280. 

3  State  v.  Washington,  44  N.  J.  L.  605  (43  Am.  Rep.  402). 

4  State  ex  rel.  Dickason  v.  Marion  Co.  Court,  128  Mo.  427;  Ex  parte 
Williams,  31  Tex.  Cr.  Rep.  262;  Trezvant  v.  State  (Tex.  Cr.  Rep.),  20 
S.  W.  582. 

5  See  post,  §  164,  for  a  discussion  of  the  prohibition  of  the  sale  of  per- 
sonal property. 

§  120 


PROHIBITION    OF   OCCUPATIONS    IN    GENERAL.  505 

stituted  and  enforced,  except  so  far  as  a  trade  or  occu- 
pation is  harmful  or  threatens  to  be  harmful  in  any  way 
to  the  public,  however  slight  the  restraint  may  be  ;  so  much 
the  more  necessary  must  it  be  to  confine  the  exercise  of 
the  police  power  to  the  prevention  of  the  injuries  with 
which  the  public  is  threatened  by  the  prosecution  of  a 
calling,  when  the  law  undertakes  to  deny  altogether  the 
right  to  pursue  the  calling  or  profession.  In  proportion  to 
the  severity  or  extent  of  the  police  control  must  the 
strict  observance  of  the  constitutional  limitations  upon 
police  power  be  required.  There  is  no  easier  or  more 
tempting  opportunity  for  the  practice  of  tyranny  than  in 
the  police  control  of  occupations.  Good  and  bad  motives 
often  combine  to  accomplish  this  kind  of  tyranny.  The 
zeal  of  the  reformer,  as  well  as  cupidity  and  self-interest, 
must  alike  be  guarded  against.  Both  are  apt  to  prompt 
the  employment  of  means,  to  attain  the  end  desired,  which 
the  constitution  prohibits. 

It  has  been  so  often  explained  and  stated,  that  the  police 
power  must,  when  exerted  in  any  direction,  be  confined  to 
the  imposition  of  those  restrictions  and  burdens  which  are 
necessary  to  promote  the  general  welfare,  in  other  words  to 
prevent  the  infliction  of  a  public  injury,  that  it  seems 
to  be  an  unpardonable  reiteration  to  make  any  further 
reference  to  it.  But  the  principle  thus  enunciated  is  the 
key  to  every  problem  arising  out  of  the  exercise  of  police 
power.  Applied  to  the  question  of  prohibition  of  trades 
and  occupations,  it  declares  unwarranted  by  the  constitu- 
tion any  law  which  prohibits  altogether  an  occupation,  the 
prosecution  of  which  does  not  necessarily,  and  because  of 
its  unenviable  character,  work  an  injury  to  the  public.  It 
is  not  sufficient  that  the  public  sustains  harm  from  a  certain 
trade  or  employment,  as  it  is  conducted  by  some  who  are 
enorawed  in  it.  Nor  is  it  sufficient  that  all  remedies  for  the 

r?    D 

prevention  of  the  evil  prove  defective,  which  fall  short  of 
total  prohibition.  Because  many  men  engaged  in  the  call- 

§  120 


506  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

ing  persist  in  so  conducting  the  business  that  the  public 
suffer,  and  their  actions  cannot  otherwise  be  effectually 
controlled,  is  no  justification  of  a  law  which  prohibits  an 
honest  man  from  conducting  the  business  in  such  a  manner 
as  not  to  inflict  injury  upon  the  public.  In  order  to  pro- 
hibit the  prosecution  of  a  trade  altogether,  the  injury  to 
the  public,  which  furnishes  the  justification  for  such  a  law, 
must  proceed  from  the  inherent  character  of  the  business. 
Where  it  is  possible  to  conduct  the  business  without  harm 
to  the  public,  all  sorts  of  police  regulations  may  be  insti- 
tuted, which  may  tend  to  suppress  the  evil.  Licenses  may 
be  required,  the  most  rigid  system  of  police  inspection  may 
be  established,  and  heavy  penalties  may  be  imposed  for  the 
infractions  of  the  law  ;  but  if  the  business  is  not  inherently 
harmful,  the  prosecution  of  it  cannot  rightfully  be  pro- 
hibited to  one  who  will  conduct  the  business  in  a  proper 
and  circumspect  manner.  Such  an  one  would  "  be  deprived 
of  his  liberty  "  without  due  process  of  law. 

As  it  was  said  by  the  Supreme  Court  of  the  United  States 
in  one  case,1  by  Justice  Bradley  :  — 

"  The  right  to  follow  any  of  the  common  occupations  of 
life  is  an  inalienable  right.  It  was  formulated  as  such 
under  the  phrase,  *  pursuit  of  happiness,'  in  the  Declara- 
tion of  Independence,  which  commenced  with  the  funda- 
mental proposition  that  «  all  men  are  created  equal,  that 
they  are  endowed  by  their  Creator  with  certain  inalienable 
rights  ;  that  among  these  are  life,  liberty  and  the  pursuit 
of  happiness.'  This  right  is  a  large  ingredient  in  the  civil 
liberty  of  the  citizen."  *  *  * 

"  If  it  does  not  abridge  the  privileges  and  immunities  of 
a  citizen  of  the  United  States  to  prohibit  him  from  pursu- 
ing his  chosen  calling,  and  giving  to  others  the  exclusive 
right  of  pursuing  it,  it  certainly  does  deprive  him  (to  a 
certain  extent)  of  his  liberty;  for  it  takes  from  him  the 

1  Batcher's  Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  746,  762. 
§  120 


PROHIBITION    OF    OCCUPATIONS    IN   GENERAL.  507 

freedom  of  adopting  and  following  the  pursuit  which  he 
prefers  ;  which,  as  already  intimated,  is  a  material  part  of 
the  liberty  of  the  citizen." 

So,  also,  in  another  case,  the  same  court  said,1  through 
Mr.  Justice  Matthews :  — 

'*  But  the  fundamental  rights  to  life,  liberty  and  the  pur- 
suit of  happiness,  considered  as  individual  possessions,  are 
secured  by  those  maxims  of  constitutional  law  which  are 
the  monuments  showing  the  victorious  progress  of  the  race 
in  securing  to  men  the  blessings  of  civilization  under  the 
reign  of  just  and  equal  laws,  so  that,  in  the  famous  language 
of  the  Massachusetts  Bill  of  Rights,  the  government  of  the 
commonwealth  '  may  be  a  government  of  laws,  and  not  of 
men.'  For  the  very  idea  that  one  man  may  be  compelled 
to  hold  his  life,  or  the  means  of  living,  or  any  material 
right  essential  to  the  enjoyment  of  life,  at  the  mere  will  of 
another,  seems  to  me  intolerable  in  any  country  where 
freedom  prevails,  as  being  the  essence  of  slavery  itself." 

I  add  two  quotations  from  decisions  of  the  New  York 
Court  of  Appeals,  in  the  same  strain.  In  the  case  of 
In  re  Jacobs,2  Judge  Earle  said:  — 

"  So,  too,  one  may  be  deprived  of  his  liberty,  and  his 
constitutional  rights  thereto  violated,  without  the  actual 
imprisonment  or  restraint  of  his  person.  Liberty,  in  its 
broad  sense,  as  understood  in  this  country,  means  the 
right,  not  only  of  freedom  from  actual  servitude,  imprison- 
ment or  restraint,  but  the  right  of  one  to  use  his  faculties 
in  all  lawful  ways,  to  live  and  work  where  he  will,  to  earn 
his  livelihood  in  any  lawful  calling,  and  to  pursue  any 
lawful  trade  or  avocation.  All  laws,  therefore,  which  im- 
pair or  trammel  these  rights,  which  limit  one  in  his  choice 
of  a  trade  or  profession,  or  confine  him  to  work  or  live  in 
a  specified  locality,  or  exclude  him  from  his  own  house,  or 

1  Tick  Wo  v.  Hopkins,  118  U.  8.  366,  370. 

2  98  N.  Y.  98,  106,  107. 

§  120 


508  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

restrain  his  otherwise  lawful  movements  (except  as  such 
laws  may  be  passed  in  the  exercise  by  the  legislature  of 
the  police  power,  which  will  be  noticed  later),  are  infringe- 
ments upon  his  fundamental  rights  of  liberty,  which  are 
under  constitutional  protection." 

And,  again,  in  the  case  of  the  People  v.  Marx,1  Judge 
Rapallo,  speaking  of  the  inalienable  rights  of  man  under 
American  constitutional  limitations,  said :  — 

"  Among  these,  no  proposition  is  now  more  firmly  settled 
than  that  it  is  one  of  the  fundamental  rights  and  privileges 
of  every  American  citizen  to  adopt  and  follow  such  lawful 
industrial  pursuits,  not  injurious  to  the  community,  as  he 
may  see  fit.  The  term  *  liberty,'  as  protected  by  the  con- 
stitution, is  not  cramped  into  mere  freedom  from  physical 
restraint  of  the  person  of  the  citizen  as  by  incarceration, 
but  it  is  deemed  to  embrace  the  right  of  man  to  be  free  in 
the  enjoyment  of  the  faculties  with  which  he  has  been  en- 
dowed by  his  Creator,  subject  only  to  such  restraints  as  are 
necessary  for  the  common  welfare." 

With  this  understanding  of  the  constitutional  limitations 
upon  the  police  control  of  employments,  it  is  not  difficult  to 
test  the  constitutionality  of  the  various  laws  enacted  in  dif- 
ferent States,  which  prohibit  the  prosecution  of  certain 
trades  and  professions. 

§  121.  Prohibition  of  trade  in  vice — Social  evil, 
gambling,  horse-racing.  —  It  has  been  maintained  in  a 
previous  section,2  that  the  police  power  does  not  extend  to 
the  punishment  of  vice.  No  law  can  make  vice  a  crime, 
unless  it  becomes  by  its  consequence  a  trespass  upon  the 
rights  of  the  public.  But  while  this  may  be  true,  no  man  can 
claim  the  right  to  make  a  trade  of  vice.  A  business  that 
panders  to  vice  may  and  should  be  strenuously  prohibited,  if 
possible.  Fornication  is  a  most  grievous  and  common  vice. 

1  99  N.  Y.  377.  8  See  ante,  §  60. 

§    121 


PROHIBITION    OF    TRADE    IN    VICE.  509 

Under  this  view  of  the  limitations  of  police  power,  it  could 
not  be  made  a  punishable  offense,  although  it  would  be 
commendable  as  well  as  permissible  to  prohibit  the  keep- 
ing of  houses  of  ill-fame.1  Gambling  of  every  kind  is  an 
evil,  a  vice,  which  cannot  consistently  be  punished,  except 
indirectly  by  a  refusal  of  the  courts  to  enforce  gambling  con- 
tracts ; 2  but  the  State  may  prohibit  and  punish  the  keeping 
of  gambling  houses,  and  lotteries,  and  the  sale  of  lottery 
tickets.3  And  it  is  the  same  in  respect  to  every  vice.  Vice, 
as  vice,  is  not  subject  to  police  regulation;  but  a  business 

1  State  v.  Williams,  11  S.  C.  288;  Guilders  v.  Mayor,  3  Sneed,  356; 
Stone  v.  State,  22  Tex.  App.  185;  State  v.  Schaffer,  74  Iowa,  704;  Hei- 
zinger  v.  State,  70  Md.  278;  People  v.  Hanrahan,  75  Mich.  611;  Com.  v. 
Shea,  150  Mass.  314;  Freman  v.  State,  119  Ind.  501;  People  v.  Slater,  119 
Cal.  620  (one  woman  is  sufficient  to  make  it  a  house  of  ill-fame).  Keep- 
ing a  disorderly  house  is  generally  held  to  be  unlawful.  In  State  ». 
Haberle,  72  Iowa,  138,  it  was  held  not  unconstitutional  for  a  statute  to 
allow  conviction  on  the  proof  of  general  reputation  of  the  place.  In 
Thatcher  v.  State,  48  Ark.  60,  it  was  held  that  noise  and  boisterous  con- 
duct are  not  essential  to  the  offense.  Beard  v.  State,  71  Md.  275  (do.). 
In  Huffman  v.  State,  23  Tex.  App.  491;  Sara  v.  State,  22  Tex.  App.  639, 
it  was  held  that  general  reputation  is  sufficient  as  to  the  character  of 
house ;  but  the  defendant  must  be  proved  to  be  keeper  by  direct  evidence. 

8  See  ante,  §  116. 

3  Freleigh  v.  State,  8  Mo.  606;  State  v.  Sterling,  Ib.  797;  Terry  v. 
Olcott,  4  Conn.  442;  Ex  parte  Blanchard,  9  Nev.  101;  Kohn  v.  Koehler, 
21  Hun,  466;  Hart  v.  People,  26  Hun,  396.  See  State  v.  Phalen,  3  Harr. 
441,  in  which  it  is  held  that  an  act,  prohibiting  lotteries,  cannot  act 
retrospectively,  so  as  to  affect  a  lottery  which  is  carried  on  under  special 
grant  of  the  legislature.  In  Nevada,  a  law  was  sustained,  as  not  being 
local  legislation,  which  prohibited  gambling  in  only  one  county,  the  act 
prohibiting  gambling  in  any  county,  in  which  more  than  1,600  votes  had 
been  cast  at  the  preceding  general  election.  State  ex  rel.  Patterson  v. 
Donovan,  20  Nev.  75;  15  P.  783.  See,  generally,  Downey  v.  State,  115 
Ala.  108;  Bibb.  v.  State,  84  Ala.  13;  Copeland  v.  State,  36  Tex.  Cr.  Rep. 
576;  38  S.  W.  189;  Haring  v.  State,  51  N.  J.  L.  386;  People  v.  Fallon, 
152  N.  Y.  12;  People  v.  Van  DeCarr,  150  N.  Y.  439;  Vowells  v.  Common- 
wealth, 84  Ky.  52;  Newman  v.  People,  23  Colo.  300;  Wooten  v.  State, 
23  Fla.  335;  Dunbar  v.  State,  34  Tex.  Cr.  R.  596;  Emraons  v.  State,  34 
Tex.  Cr.  R.  98,  118;  Humphreys  v.  State,  34  Tex.  Cr.  R.  434;  McBride  p. 
State,  39  Fla.  442;  State  v.  Gilmore,  98  Mo.  206;  Commonwealth  v. 
Blankinship,  165  Mass.  40  (in  this  case,  it  was  a  gambling  club). 

§  121 


510  REGULATION    OF   TKADES    AND    OCCUPATIONS. 

may  always  be  prohibited,  whose  object  is  to  furnish  means 
for  the  indulgence  of  a  vicious  propensity  or  desire. 

I  have  left  unchanged  the  foregoing  text  of  this  section 
which  appeared  in  the  first  edition  on  page  291  as  a  part  of 
section  102,  notwithstanding  the  fact  that  this  distinction 
between  crime  and  vice  as  the  proper  subjects  of  police  reg- 
ulation has  not  been  indorsed  by  the  courts,  as  I  have  fully 
set  it  forth  in  a  preceding  section  of  the  present  edition.1 
And  I  do  so  because  the  adverse  decisions  have  not  con- 
vinced me  that  the  distinction  is  unsound.  The  position 
of  the  text  has  been  fully  sustained,  however,  as  to  the 
right  of  the  State  to  prohibit  all  trades  which  pander  to 
vice.  And  I  have  added  a  number  of  cases,  which  illus- 
trate the  power  of  the  legislature  to  prohibit  the  vicious 
trades,  which  has  been  mentioned  above.  Some  new 
phases  of  such  prohibitions  deserve  special  mention.  For 
example,  in  the  effort  to  stamp  out  the  vice  of  gambling, 
not  only  have  book-making  and  pool-selling  been  included 
within  the  list  of  prohibited  occupations  ; 2  but  even  horse- 
racing  has  been  prohibited,  except  as  allowed  by  the  act; 
and  the  prohibition  has  been  sustained  as  a  constitutional 
exercise  of  the  police  power.3  And  in  many  of  the  States 
the  keeping  of  what  are  known  as  bucket-shops,  wherein 
people  of  small  means  are  provided  with  the  means  of  en- 
gaging in  option  dealing,  has  been  declared  to  be  a  crim- 
inal misdemeanor,  without  any  successful  attack  upon  the 
constitutionality  of  the  statute.4 

§  122.  Prohibition  of  trades  for  the  prevention  of 
fraud  —  Adulterations  of  goods  —  Harmful  or  dangerous 
goods  —  Prohibition  of  sale  of  oleomargarine. — Fraud 

1  §  60. 

2  State  v.  Burgdoerfer,  107  Mo.  1;  State  o.  Thomas,  138  Mo    95; 
Irving  v.  Britton,  28  N.  Y.  S.  629. 

3  State  v.  Eoby,  142  Ind.  168. 

4  Sobyr.  People,  134  111.  66;  Caldwell  ».  People,  67  111.  App.  367; 
Fortenbury  v.  State,  47  Ark.  188. 

§  122 


PROHIBITION  OF  TRADES  FOR  PREVENTION  OF  FRAUDS.  511 

is  a  trespass  upon  the  rights  of  others,  and  may,  therefore, 
always  be  punished.  When,  therefore,  a  business  consists 
necessarily  in  the  perpetration  of  a  fraud,  the  business  may 
be  prohibited;  although  fraud  furnishes  no  justification  for 
the  prohibition  of  a  business,  which  is  not  necessarily 
fraudulent,  but  which  only  affords  abundant  facilities  for 
its  commission.  Thus  it  has  been  held  within  the  consti- 
tutional limitation  of  the  power  of  a  State  legislature  to 
prohibit  the  sale  of  adulterated  milk,  even  though  the  adul- 
teration is  made  with  harmless  materials,  such  as  pure  water.1 
It  may  be  said  that  a  perfectly  bona  fide  sale  may  be  made 
of  adulterated  milk,  but  the  position  is  hardly  sustainable. 
Adulteration  is  essentially  fraudulent,  and  serves  no  good 
purpose  ;  and  the  sale  of  the  adulterated  article  of  food  may 
be  rightfully  prohibited,  although  it  produces  no  unwhole- 
Bome  effect.  Sugars  are  now  very  commonly  adulterated 
by  the  use  of  a  harmless  substance  called  glucose.  There  can 
be  no  doubt  of  the  power  of  the  State  to  make  the  sale  and 
manufacture  of  adulterated  sugar  a  misdemeanor ;  but  the 
great  difficulty,  that  is  experienced  in  detecting  and  sup- 
pressing this  mode  of  adulteration,  would  not  justify  the 
absolute  prohibition  of  the  sale  and  manufacture  of  sugars. 
A  still  stronger  ground  for  the  total  prohibition  of  a  trade 
or  business  is  when  the  thing  offered  for  sale  is  in  some 
way  injurious  or  unwholesome.  It  is  not  enough  that  the 
thing  may  become  harmful,  when  put  to  a  wrong  use.  It 
must  be  in  itself  harmful,  and  incapable  of  a  harmless  use. 
Poisonous  drugs  are  valuable,  when  properly  used,  but  they 
may  work  serious  injuries,  by  being  improperly  used,  even 
to  the  extent  of  destroying  life.  But  it  would  hardly  be 

1  Legislature  has  the  power  in  an  act  forbidding  the  sale  of  impure  or 
adulterated  milk,  to  fix  a  standard  by  which  it  shall  be  judged.  People 
v.  Cipperly,  101  N.  Y.  634;  State  v.  Smythe,  14  R.  I.  100  (51  Am.  Rep. 
344);  Commonwealth  v.  Waite,  9  Allen,  2G4;  Commonwealth  v.  Farren, 
9  Allen,  489;  Polenskie  v.  People,  73  N.  Y.  65;  Powell  v.  Com.  (Pa.),  7 
A. 913. 

§   122 


512  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

claimed  that,  on  that  account,  their  sale  could  be  prohib- 
ited altogether.  Safeguards  of  every  kind  can  be  thrown 
around  the  sale  of  them,  so  that  damage  will  not  be  sus- 
tained from  an  improper  use  of  them,  but  that  is  the  limit 
of  the  police  control  of  the  trade.  Thus,  for  example, 
opium  is  a  very  harmful  drug,  when  improperly  used,  and 
it  is  all  the  more  dangerous  because  the  power  of  resist- 
ance diminishes  rapidly  in  proportion  to  the  growth  of  the 
habit  of  taking  it  as  a  stimulant ;  and  a  miserable,  de- 
graded death  is  the  usual  end.  An  opium  eater  or  smoker 
not  only  brings  down  ruin  upon  himself,  but  inflicts 
misery  upon  all  who  stand  in  more  or  less  intimate  rela- 
tion with  him.  The  habit  is  a  most  dangerous  vice.  But, 
on  the  other  hand,  opium  is  a  very  useful,  and  an  indis- 
pensable drug.  Many  a  poor  sufferer  has  had  his  descent 
to  the  grave  made  easy  and  painless  by  the  judicious  use 
of  this  drug.  Shall  the  sale  of  opium  be  prohibited  alto- 
gether, simply  because  some  men  are  apt  to  misuse  it  to 
their  own  injury?  The  law  can  prohibit  the  keeping  of 
houses  where  those  who  are  addicted  to  the  opium  habit 
are  entertained  with  the  opium  pipe;  the  law  may  subject 
the  sale  of  opium  to  such  regulations  as  may  be  calculated 
to  diminish  the  temptation  to  acquire  this  evil  habit ;  but 
the  sale  of  the  drug  for  proper  purposes  cannot  be  pro- 
hibited.1 It  is  possible  that  the  sale  of  opium  or  other  poi- 
sonous drugs  may  be  prohibited  to  all  except  those  who,  like 
physicians  and  druggists,  furnish  iu  their  professional  char- 
acter a  safe  guaranty,  that  no  improper  use  shall  be  made 
of  them,  and  to  others  upon  the  prescription  of  a  physician. 
But  that  is  questionable.  The  sale  of  it  can,  of  course,  be 

1  State  v.  Ah  Sam,  15  Nev.  27  (Am  Rep.  464);  State  v.  Ah  Chew,  16 
Nev.  50  (40  Am.  Rep.  488).  See  State  v.  Lee,  137  Mo.  143.  In  re  Ah 
Jow,  29  Fed.  Rep.  181,  it  was  held  that  it  was  unconstitutional  to  make 
it  a  misdemeanor  for  any  one  to  frequent,  resort  to  or  visit  any  room 
where  opium  is  sold  or  given  away,  unless  the  prohibition  is  confined 
to  visits  for  criminal  purposes. 

§  122 


PROHIBITION  OF  TRADES  FOR  PREVENTION  OF  FRAUDS.     513 

prohibited  to  minors  and  to  all  who  may  be  suffering  from 
some  form  of  dementia,  and  to  confirmed  opium  eaters. 
But  it  would  seem  to  be  taking  away  the  free  will  of  those, 
who  are  under  the  law  confessedly  capable  of  taking  care  of 
themselves,  if  the  law  were  to  prohibit  the  sale  of  opium 
to  adults  in  general. 

Where  a  thing  may  be  put  to  a  wrongful  and  injuri- 
ous use,  and  yet  may  serve  in  some  other  way  a  useful 
purpose,  the  law  may  prohibit  the  sale  of  such  things, 
in  any  case  where  the  vendor  represents  them  as  fit  for 
a  use  that  is  injurious,  or  merely  knows  that  the  pur- 
chaser expects  to  apply  them  to  the  injurious  pur- 
pose. Thus  the  sale  of  diseased  or  spoiled  meats  or  other 
food,  as  food,  intending  or  expecting  that  the  purchaser  is 
to  make  use  of  them  as  food,  may  be  prohibited.  So,  also, 
the  sale  of  milk  which  comes  from  cows  fed  in  whole  or  in 
part  upon  still  slops,  may  be  prohibited  if  it  is  true  that 
such  milk  is  unwholesome  as  human  food.1  In  the  same 
manner  a  law  was  held  to  be  constitutional,  which  prohib- 
ited the  sale  of  illuminating  oil  which  ignited  below  a  cer- 
tain heat.2  But  it  would  be  unconstitutional  to  prohibit 
altogether  the  sale  of  either  of  these  things,  if  they  could 
be  employed  in  some  other  harmless  and  useful  way.  For 
example,  the  oil  which  was  prohibited  for  illuminating  pur- 
poses, may  be  very  valuable  and  more  or  less  harmless  when 
used  for  lubricating  purposes. 

But  the  courts  do  not  always  make  these  distinctions. 
It  has  thus  been  held  to  be  constitutional  for  the  law  to 
prohibit  the  manufacture  or  sale  of  vinegar  which  con- 
tains any  artificial  coloring  matter,  it  matters  not  how 
harmless  the  matter  ;  and  even  when  there  is  no  appar- 
ent intent  to  thereby  commit  fraud.3  In  the  New  York 

1  Johnson  v.  Simonton,  43  Cal.  542. 

2  Patterson  v.  Kentucky,  97  U.  S.  501. 

8  People  v.  Girard,  73  Hun,  457;  s.c.  145  N.Y.  105;  Wellerr.  State,  53 
Ohio  St.  77.  A  more  rational  law  is  that  which  was  sustained  in 

33  §  122 


\ 
514  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

vinegar  case,1  referring  to  the  argument  that  the  law  in 
question  was  an  unwarranted  interference  with  vested 
right,  Judge  Finch  said:  "Sometimes  it  (the  argument) 
is  pertinent  and  weighty,  but  in  this  case  it  is  neither. 
It  becomes  the  assertion  of  a  vested  right  to  color  a  food 
product  so  as  to  conceal  or  disguise  its  true  or  natural 
appearance ;  in  plain  words,  a  vested  right  to  deceive  the 
public."  In  the  Ohio  case,2  sustaining  a  similar  statute, 
prohibiting  the  manufacture  and  sale  of  vinegar,  when  arti- 
ficial coloring  matter  is  used  in  its  preparation,  the  court 
say:  — 

"It  is  claimed  that  the  primary  object  of  using  roasted 
malt  is  to  give  aroma  and  flavor  to  the  vinegar,  and  that 
color  is  simply  an  incident  to  the  process  adopted  in  attain- 
ing the  primary  end,  and  hence  that  the  giving  of  color 
in  this  way  cannot  be  said  to  come  within  the  meaning  of 
the  statute.  But  the  evidence  tends  to  show  that  the  pri- 
mary object  was  to  give  color.  His  (the  defendant's) 
purpose  in  using  the  roasted  malt  was  a  question  of  fact, 
to  be  determined  by  the  court  trying  the  case.  His 
statement  as  to  his  purpose  cannot  control  the  court, 
if,  in  view  of  all  the  evidence,  the  court  is  satisfied 
that  his  real  and  principal  purpose  was  to  give  color 
to  the  vinegar.  Again,  if  the  primary  object  was  to 
give  aroma  and  flavor,  still  the  process  adopted  for  this 
purpose  was  an  artificial  one.  Distilled  vinegar,  as  is 
that  of  the  defendant,  has  no  such  aroma.  It  is  given,  if 
at  all,  by  the  artificial  method  of  running  the  distillation 

Stolzo.  Thompson,  44  Minn.  271,  as  a  legitimate  exercise  of  the  police 
power,  whereby  the  sale  of  baking  powders,  containing  alum,  was  pro- 
hibited, unless  a  label  was  affixed  to  the  box  or  package,  announcing 
that  "  this  baking-powder  contains  alum."  The  fact,  however,  that 
alum  in  baking-powders  makes  the  compound  unwholesome,  would 
undoubtedly  have  justified  a  total  prohibition  of  its  use  in  the  manu- 
facture of  baking  powder. 

1  People  v.  Girard,  145  N.  Y,  106. 

2  Weller  v.  State,  53  Ohio  St.  77. 

§  122 


PROHIBITION  OF  TRADES  FOR  PREVENTION  OF  FRAUDS.  515 

through  roasted  malt,  before  its  acetification,  and  artificial 
coloring  is  one  of  the  principal  results ;  and  in  such  case  it 
is  not  material  whether  color  or  aroma  was  the  primary 
object  both  being  attained  by  artificial  means.  The  process 
adds  no  substantial  ingredients  to  the  vinegar,  for  neither 
aroma,  flavor  nor  color  can  be  said  to  be  substantial  ingre- 
dients of  any  product.  They  are  not  susceptible  of  analysis, 
and  are  merely  perceived  by  the  aid  of  the  senses.  *  *  * 
The  construction  asked  to  be  given  this  statute  would  per- 
mit a  manufacturer  to  run  distilled  vinegar  through  roasted 
apples,  and,  by  thereby  imparting  to  it  the  color  and  aroma 
of  cider  vinegar,  sell  it  in  the  market  as  such.  And  this, 
we  understand,  was  claimed  in  the  court  below.  But  the 
purpose  of  this  statute  was,  we  think,  to  protect  the  public 
against  such  deceptions.  Much  is  claimed  from  the  fact  that 
it  was  admitted  on  the  trial  that  the  vinegar  of  the  defendant 
was  wholesome,  and  that  he  did  not  intend  to  deceive  any 
one  by  usin^  the  roasted  malt,  and  labeling  and  selling  his 
product  as  *  malt  vinegar.'  But  this  is  wholly  immaterial. 
It  matters  not  what  his  intentions  may  have  been.  The 
tendency  of  such  devices  is  to  deceive  the  public,  and  the 
statute  was  enacted  to  afford  it  protection  therefrom. 
Such  a  statute  is  clearly  within  the  proper  excercise  of  the 
police  power  of  the  State.  Every  one  has  the  right  to  dis- 
tinguish for  himself  what  an  article  of  food  is,  and  have  the 
means  of  judging  for  himself  its  quality  and  value." 

So  far  as  these  cases  merely  undertake  to  prevent  the 
use  of  artificial  coloring  matter  in  the  manufacture  of 
vinegar  from  low  wines,  formed  from  fermented  grain,  in 
order  to  give  to  such  vinegar  the  color  of  vinegar  formed 
by  the  natural  process  of  fermentation  of  cider,  they  are 
easily  justified  on  the  principle,  set  forth  in  another  place 
in  the  present  section,  that  adulterations  are  essentially 
fraudulent.  But  the  ruling  in  these  cases  cannot  be  ex- 
tended, so  as  to  include  in  the  scope  of  their  conptitutional 
justification,  laws  which  prohibit  the  use  of  artificial  color- 

§  122 


516  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

ing  matter,  even  though  there  is  no  opportunity  to  thereby 
palm  off  the  product  for  another  article,  and  the  motive  is 
simply  to  give  it  a  more  pleasing  appearance.  Many  arti- 
cles of  foods  are  artificially  colored,  for  example,  butter, 
and  whisky;  but  there  is  no  intention  to  deceive,  unless 
it  is  deception  merely  to  give  an  article  of  manufacture  a 
more  agreeable  color  than  what  it  naturally  possesses. 
These  cases  must  not  be  taken  as  authorities  for  justi- 
fying prohibition  of  the  innocent  coloring  of  products, 
when  it  is  not  done  to  make  them  resemble  something 
else.1 

These  principles  have  lately  been  presented  for  consider- 
ation and  review  in  connection  with  laws  prohibiting  the 
manufacture  and  sale  of  a  substance,  called  oleomargarine, 
which  resembles  butter,  and  is  intended  to  be  used  instead, 
and  to  supply  the  place  in  trade,  of  the  dairy  product.  It 
is  manufactured  out  of  certain  fatty  deposits  of  the  cow, 
which  contain  the  same  chemical  properties  as  butter,  vary- 
ing only  in  degree.  In  New  York  and  Missouri,  and  per- 
haps in  other  States,  laws  have  been  enacted,  prohibiting 
absolutely  the  sale  and  manufacture  of  the  oleomargarine. 
Although  some  attempt  has  been  made  to  show  that  this 
butter  substitute  is  unwholesome  as  food,  it  seems  now 
to  be  established  by  the  most  thorough  chemical  analyses, 
that  there  is  no  unwholesome  ingredient  in  unadulterated 
oleomargarine.  If  it  were  shown  to  be  unwholesome  as 
food,  its  sale  for  the  purpose  of  human  consumption  could 
without  doubt  be  prohibited.  But  the  only  valid  objection 
to  its  sale  is  the  close  resemblance  to  genuine  butter,  and  the 
consequent  opportunity  for  the  perpetration  of  fraud.  And 
this  was  the  sole  ground  upon  which  the  constitutionality  of 

the  law  was  sustained  by  the  Supreme  Court  of  Missouri.2 

< 

1  See  ante,  §  89. 

2  <»  The  central  idea  of  the  statute  before  us  seems  very  manifest;  it 
was,  in  our  opinion,  the  prevention  of  facilities  for  selling  or  manufac- 
turing a  spurious  article  of  butter,  resembling  the  genuine  article  so 

§  122 


PROHIBITION  OF  TRADES  FOR  PREVENTION  OF  FRAUDS.  517 

But  it  is  plain  from  the  foregoing  principles,  that  a  total 
prohibition  of  the  sale  of  a  thing  cannot  be  justified  on  any 
such  grounds.  The  sale  must  be  necessarily  fraudulent,  in 
order  to  admit  of  its  absolute  prohibition.  The  law,  there- 
fore, which  prohibits  the  sale  of  oleomargarine,  granting 
that  it  is  a  wholesome  article  of  food,  is  unconstitutional, 
and  so  it  is  decided  by  the  New  York  Court  of  Appeals,  in 
considering  the  validity  of  the  New  York  statute.1  In  the 
United  States  Circuit  Court,  the  constitutionality  of  the  Mis- 
souri statute  was  disputed  in  a  petition  by  the  party  to  the 
cause,  who  prayed  for  the  intervention  of  the  United  States 
courts  to  prevent  the  enforcement  of  the  law.  The  petition 
was  denied,  on  the  ground  that  the  United  States  court  has 
no  jurisdiction;  but  in  delivering  the  opinion  of  the  court, 
Justice  Miller  expressed  the  opinion  that  the  law  was  in  vio- 
lation of  the  constitution  of  Missouri.2 

The  practice  of  deception  in  the  sale  of  the  oleomar- 
garine may  be  made  punishable  as  a  misdemeanor,  and  the 
law  may  require,  as  in  Ohio,  the  oleomargarine  to  be  put  up 
for  sale  in  packages  on  which  shall  be  distinctly  and  durably 
painted,  stamped,  or  marked,  the  name  of  each  article  used 
or  entering  into  the  composition  of  such  substance.3  A  law 
has  lately  been  proposed  in  New  York,  by  which  every  one 
dealing  in  oleomargarine,  is  required  to  put  up  a  sign  to  that 
effect,  and  in  the  manufacture  of  the  substance  it  is  required 

closely  in  its  external  appearance,  as  to  render  it  easy  to  deceive  pur- 
chasers into  buying  that  which  they  would  not  buy  but  for  the  deception. 
The  history  of  legislation  on  this  subject,  as  well  as  the  phraseology  of 
the  act  itself,  very  strongly  tend  to  confirm  this  view.  If  this  was  the 
purpose  of  the  enactment  now  under  discussion,  we  discover  nothing  in 
its  provisions  which  enables  us,  in  the  light  of  the  authorities,  to  say  that 
the  legislature,  when  passing  the  act,  exceeded  the  power  confided  to  that 
department  of  the  government ;  and,  unless  we  can  say  this,  we  cannot 
hold  the  act  as  being  anything  less  than  valid."  State  v.  Addington,  77 
Mo.  118. 

1  People  v.  Marx,  99  N.  Y.  307  (52  Am.  Rep.  314). 

*  In  re  John  Brosnaban,  Jr.,  4  McCrary,  1. 

3  Palmer  v.  State,  39  Ohio  St.  236.     See  ante,  §  89. 

§  12 


518  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

to  be  so  colored  that  it  may  be  readily  distinguished  from 
pure  butter.  There  can  be  no  doubt  as  to  the  constitu- 
tionality of  such  laws,  for  their  only  effect  is  the  preven- 
tion of  fraud.  They  do  not  interfere  with  the  honest  sale 
of  a  wholesome  article  of  food. 

The  later  authorities,  however,  all  tend  to  support  the 
Missouri  view  of  the  constitutionality  of  laws,  r/hich  pro- 
hibit altogether  the  sale  of  oleomargarine.  In  most  of  the 
States,  the  regulations  in  accordance  with  the  text,  go  no 
farther  than  to  prevent  fraud  and  deception  in  the  sale  of 
the  product  for  genuine  butter,  either  by  requiring  the 
oleomargarine  to  be  artificially  colored,  so  as  to  be  distin- 
guishable from  butter,  or  by  requiring  the  packages  to  be 
stamped  with  the  name  of  oleomargarine,  or  posting  up 
some  notification  that  the  grocer  sells  the  tabooed  article.1 
But  so  far  as  I  know,  except  in  New  York,  laws  prohibit- 
ing the  total  prohibition  of  the  manufacture  and  sale  of 
oleomargarine  have  been  generally  sustained,  in  some  cases 
with  a  statement  of  the  unlimited  power  of  the  legislatures 
in  dealing  with  the  matter  that  is  in  startling  contrast  with 
the  freedom  with  which  the  courts  have  in  other  cases  as- 
sumed to  veto  legislation,  because  it  was  unreasonable  and 
for  that  reason  in  violation  of  the  constitution.  Thus  the 
Pennsylvania  statute,  prohibiting  the  manufacture  and  sale 
of  oleomargarine,  was  sustained 2  with  this  remarkable 
statement  of  the  omnipotence  of  the  legislature  in  the 
regulation  of  the  matter  :  — 

"  The  mere  fact  that  experts  may  pronounce  a  manufac- 
tured article  intended  for  food  to  be  wholesome  or  harm- 
less does  not  render  it  incompetent  for  the  legislature  to 
prohibit  the  manufacture  and  sale  of  the  article.  The 
test  of  the  reasonableness  of  a  police  regulation  prohibiting 
the  making  and  vending  of  a  particular  article  of  food  is 

1  See  ante,  89. 

2  Powell  v.  Commonwealth,  114  Pa.  St.  265.     See,  also,  in  support  of 
the  law,  Commonwealth  v.  Schollenberger,  156  Pa.  St.  201. 

§  122 


PROHIBITION  OF  TRADES  FOR  PREVENTION  OF  FRAUDS.  519 

not  alone  whether  it  is  in  part  unwholesome  and  injurious. 
If  an  article  of  food  is  of  such  a  character  that  few  persons 
will  eat  it,  knowing  its  real  character;  if,  at  the  same  time, 
it  is  of  such  a  nature  that  it  can  be  imposed  upon  the  public 
as  an  article  of  food  which  is  in  common  use,  and  against 
which  there  is  no  prejudice;  and,  if,  in  addition  to  this, 
there  is  probable  ground  for  believing  that  the  only  way  to 
protect  the  public  from  being  defrauded  into  the  purchas- 
ing of  the  counterfeit  article  for  the  genuine  is  to  prohibit 
altogether  the  manufacture  and  sale  of  the  former  —  then 
we  think  such  a  prohibition  may  stand  as  a  reasonable 
police  regulation,  although  the  article  prohibited  is  in  fact 
innocuous,  and  although  its  production  might  be  found 
beneficial  to  the  public,  if  in  buying  it  they  could  distin- 
guish it  from  the  production  of  which  it  is  an  imitation." 

The  decision  of  the  Pennsylvania  court  was  sustained 
on  appeal^  by  the  United  States  Supreme  Court.1  In  the 
trial  court,  evidence  was  offered  to  show  that  eleomargarine 
was  an  absolutely  wholesome  product ;  but  it  was  refused  ad- 
mission. The  opinion  of  the  Supreme  Court  of  the  United 
States,  was  in  part :  — 

"  Whether  the  manufacture  of  eleomargarine,  or 
imitation  butter,  of  the  kind  described  in  the  statute, 
is  or  may  be  conducted  in  such  a  way,  or  with  such 
skill  and  secrecy,  as  to  baffle  ordinary  inspection,  or 
whether  it  involves  such  danger  to  the  public  health  as  to 
require,  for  the  protection  of  the  people,  the  entire  sup- 
pression of  the  business,  rather  than  its  regulation  in  such 
manner  as  to  permit  the  manufacture  and  sale  of  articles 
of  that  class  that  do  not  contain  noxious  ingredients,  are 
questions  of  fact  and  of  public  policy  which  belong  to  the 
legislative  department  to  determine.  And  as  it  does  not 
appear  upon  the  face  of  the  statute,  or  from  any  facts  of 
which  the  court  may  take  judicial  cognizance,  that  it  in- 

1  Powell  v.  Pennsylvania,  127  U.  S.  678. 

§  122 


520  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

fringes  rights  secured  by  the  fundamental  law,  the  legisla- 
tive determination  of  those  questions  is  conclusive  upon  the 
courts.  It  is  not  a  part  of  their  functions  to  conduct  inves- 
tigations of  facts  entering  into  questions  of  public  policy 
merely,  and  to  sustain  or  frustrate  the  legislative  will,  em- 
bodied in  statutes,  as  they  may  happen  to  approve  or  dis- 
approve its  determination  of  such  questions."  *  *  * 
<«  The  legislature  of  Pennsylvania,  upon  the  fullest  inves- 
tigation, as  we  must  conclusively  presume,  and  upon  rea- 
sonable grounds,  as  must  be  assumed  from  the  records,  bus 
determined  that  the  prohibition  of  the  sale,  or  offering  for 
sale,  or  having  in  possession  to  sell,  for  purposes  of  food, 
of  any  article  manufactured  out  of  oleaginous  substances  or 
compounds,  other  than  those  produced  from  unadulterated 
milk  or  cream  from  unadulterated  milk,  to  take  the  place 
of  butter  produced  from  unadulterated  milk  or  cream  from 
unadulterated  milk  will  promote  the  public  health  and  pre- 
vent frauds  in  the  sale  of  such  articles.  If  all  that  can  be 
said  of  this  legislation  is  that  it  is  unwise,  or  unnecessarily 
oppressive  to  those  manufacturing  or  selling  wholesome 
oleomargarine,  as  an  article  of  food,  their  appeal  must  be 
to  the  legislature  or  to  the  ballot  box,  not  to  the  judiciary. 
The  latter  cannot  interfere  without  usurping  powers  com- 
mitted to  another  department  of  government." 

Other  cases  to  the  same  effect  are  cited  in  the  note 
below.1 

On  a  line  with  the  utterances  of  the  Supreme  Courts  of 
the  United  States  and  Pennsylvania,  just  quoted,  it  has 

i  Walker  v.  Commonwealth,  127  Pa.  St.  692;  State  v.  Newell,  140  Mo. 
282;  41  S.  W.  751;  Butler  v.  Chambers,  36  Minn.  69.  But  see  Ex  parte 
Scott,  66  Fed.  45,  which  held  such  a  law  to  be  void,  because,  not  being 
required  as  a  protection  to  health,  it  was  an  unlawful  interference  with 
interstate  commerce.  This  case,  of  course,  has  been  overruled  by  the 
United  States  Supreme  Court  in  the  cases  cited  above,  except  as  to  sale 
of  original  packages  which  are  manufactured  in  another  State  and 
shipped  to  a  prohibitory  State.  See  Commonwealth  v.  Schollenberger, 
166  Pa.  St.  201. 
§  122 


PROHIBITION  OF  TRADES  FOR  PREVENTION  OF  FRAUDS.  521 

been  maintained  in  one  case,1  that  the  judgment  of  a  town 
board  of  aldermen  that  a  certain  article  of  food  is  unwhole- 
some, and  that  therefore  the  sale  of  it  can  be  prohibited, 
is  not  open  to  inquiry  in  the  ordinary  courts.  Notwith- 
standing the  high  authority  to  the  contrary,  it  would  seem 
to  appear  from  the  general  trend  of  judicial  opinion  in 
other  and  analogous  cases,  that  the  scientific  correctness  of 
the  judgment  of  the  legislative  body  in  such  a  case  is  a 
judicial  question,  and  therefore  subject  to  review  by  the 
courts;  for  in  no  other  way  can  the  legislatures  be  kept 
within  the  limitations  of  the  constitution.  If  it  is  only 
necessary  for  the  legislature  to  pronounce  a  call- 
ing injurious  to  the  public,  in  order  to  justify 
its  prohibition,  there  is  no  limit  to  the  police 
power  of  the  government.  Constitutional  restrictions 
would  exert  no  greater  influence  than  disorganized  public 
opinion  ;  and  absolutism,  monarchical,  aristocratic  or  demo- 
cratic, according  to  the  circumstances,  would  be  the  cor- 
ner stone  of  such  a  government,  at  least  in  theory.  The 
recognition  of  the  rights  of  the  minority  would  be  only  a 
matter  of  special  grace  and  favor. 

An  important  question,  in  this  phase  of  police  power, 
which  will  soon  demand  an  explicit  answer,  is  how  far  and 
in  what  manner  the  government  may  regulate  and  prohibit 
the  manufacture  and  sale  of  dynamite  and  other  compounds 
of  nitro-glycerine.  The  deadly  character  of  the  composi- 
tion; the  ready  opportunity  which  its  portability  and  easy 
manufacture  afford  for  its  application  to  base  and  criminal 
uses;  the  ability  of  a  few  miscreants  with  a  few  pounds  of  it 
to  endanger  and  perhaps  destroy  the  lives  of  many  people, 
demolish  public  and  other  buildings,  and  bring  about  a  state 
of  anarchy  in  general,  all  of  which  can  be  done  with  very 
little  danger  of  detection  ;  these  considerations,  if  any, 
would  most  certainly  justify  the  prohibition  of  the  manufac- 

1  Johnson  v.  Simonton,  43  Cal.  242. 

§  122 


522  REGULATION    OF   TRADES   AND   OCCUPATIONS. 

ture  and  sale  of  so  dangerous  an  article.  And  yet  a  law 
would  be  unconstitutional  which  prohibited  absolutely  the 
manufacture  and  sale  of  dynamite  and  nitro-glycerine.  For 
these  powerful  agencies  are  of  great  value  and  service  in 
many  legitimate  trades  and  occupations.  The  business  may 
be  placed  under  the  strictest  police  supervision ;  heavy  pen- 
alties may  be  imposed  upon  those  who  knowingly  sell  these 
articles  to  persons  to  be  used  for  criminal  purposes  ;  a  heavy 
bond  of  indemnity  may  be  required  of  each  dealer,  and 
only  men  of  reputable  character,  under  license,  may  be  per- 
mitted to  carry  on  the  business :  these  regulations  are  all 
reasonable  and  constitutional,  for  they  do  not  extend  beyond 
the  prevention  of  the  evil  which  threatens  the  public.  A 
total  prohibition  of  the  trade  in  dynamite  would  not  only 
prevent  the  evil,  but  also  prohibit  the  lawful  use  of  a  most 
valuable  agency,  and  would  therefore  be  unconstitutional. 

§  123.  Prohibition  of  ticket-brokerage  —  Ticket-scalp- 
ing prohibited  and  punished. — Of  late  years  statutes 
have  been  enacted  in  several  States,  notably  Indiana  and 
Pennsylvania,  which  prohibit  the  sale  of  railroad  tickets, 
except  by  the  authorized  agents  of  the  railroads  and  the 
bona  fide  purchaser  of  an  unused  ticket  or  portion  of  a 
ticket,  the  object  of  the  statutes  being  to  put  an  end  to  the 
business  of  the  so-called  ticket  "  scalpers  "  or  brokers; 
and  the  Pennsylvania  statute  makes  it  compulsory  upon 
the  railroad  company  to  redeem  an  unused  ticket  or  portion 
of  a  ticket.  It  has  been  held  in  both  States  that  the  law 
was  constitutional.1  In  both  cases  the  law  was  justified 
as  a  measure  for  the  prevention  of  fraud  upon  the  rail- 
roads and  upon  purchasers.  The  preamble  to  the  Penn- 
sylvania statute  was  as  follows:  "Whereas  numerous 
frauds  have  been  practiced  upon  unsuspecting  travelers 

1  Fry  v.  State  of  Indiana,  63  Ind.  552  (18  Am.  Law  Reg.  (N.  8.)  425; 
Commonwealth  t>.  Wilson,  14  Phila.  (Pa.)  384. 

§  123 


PROHIBITION   OF   TICKET- BROKERAGE.  523 

by  means  of  the  sale  by  unauthorized  persons  of  railway 
and  other  tickets,  and  also  upon  railroads  and  other  corpo- 
rations by  the  fraudulent  use  of  tickets,  in  violation  of  the 
contract  of  their  purchase,"    etc.       It    is    not    contended 
that   the  business    of  ticket    brokerage    is  in  itself  of  a 
fraudulent  character.     The  business  can  be  honestly  con- 
ducted by  an  honest  man.     It  is  only  claimed  that  in  its 
prosecution  the  business  presents  manifold   opportunities 
for    the    commission    of    fraud.      As    has  already  been 
stated,  the  police  regulation  of  an  employment  may  ex- 
tend to  any  length  that   may  be    necessary  for   the  pre- 
vention and  suppression  of  fraud  in  its  pursuit ;   but  an 
honest  man  cannot  be  denied  the  privilege  of  conducting 
the  business  in  an  honest  and  lawful  manner  because  dis- 
honest men  are  in  the  habit  of  practicing  gross  and   suc- 
cessful frauds  upon  those  with  whom  they  have  dealings. 
If  that  were  a  justifiable  ground  for  abolishing  any    busi- 
ness, many  important,  perhaps  some  of  the  most  beneficial, 
employments  and  professions  could  be  properly  prohibited. 
There  is  no  profession  or  employment  that  furnishes  more 
abundant    opportunities   for  the  practice  of  frauds   upon 
defenseless  victims  than  does  the  profession  of  the  law,  and 
that  profession  has  its  ample  proportion  of  knaves  among 
its  votaries,  although  the  proportion  is  very  much  smaller 
than  is  popularly  supposed.     But  it  would  be  idle  to  assert 
that,  because  of  the  frequency  of  fraudulent  practices  among 
lawyers,  the  State  could   abolish  the  profession  and  forbid 
the  practice  of  the  law.     There  is  no  difference  in  principle 
between  the  two  cases.     The  business  of  ticket  brokerage 
does   afford    many    opportunities  for     fraud    and   deceit, 
and  it  may  on  that  account  be   placed   under    strict    police 
surveillance.     But  the  business  serves   a  useful  end,  when 
honestly  conducted,  and  the  constitutional  liberty  of  the 
ticket  broker  is  violated  when  he  is  prohibited    altogether 
from  carrying  on  his  business. 

The  foregoing  text  of  this  section  has  been  reproduced 

§  123 


524  REGULATION  OF  TRADES   AND   OCCUPATIONS. 

without  change  from  the  first  edition,  wherein  it  appeared 
on  pages  292,  293.  To  my  certain  knowledge,  in  every 
subsequent  case  in  which  the  constitutionality  of  such  laws 
has  been  questioned,  this  argument  has  been  presented 
against  their  constitutionality  by  the  attorneys  of  the 
ticket-brokers.  But  with  the  exception  of  the  recent  New 
York  case,  to  which  reference  will  be  made  presently,  the 
argument  did  not  seem  to  impress  the  courts,  and  they 
sustained  the  constitutionality  of  the  law.1  The  Illinois 
statute  prohibited  the  sale  of  railroad  tickets  by  any  one 
but  the  authorized  transportation  agents,  and  the  original 
purchaser  of  the  ticket.  The  Minnesota  court  held  the 
law  to  be  constitutional  as  a  regulation  of  an  incident  of 
the  business  of  common  carriers,  which  business  is  itself 
subject  to  police  regulation.  In  this  case,  Judge  Mitchell 
says :  — 

"  That  the  transportation  of  passengers  by  common  car- 
riers is  a  proper  subject  of  police  regulation  by  the  State  is 
unquestioned ;  and,  if  a  business  itself  is  the  subject  of 
police  regulation,  then  so  are  all  its  incidents  and  accesso- 
ries. That  the  matter  of  the  issue  and  transfer  of  tickets, 
as  evidences  of  the  contracts  of  the  carriers,  is  an  incident 
and  accessory  of  the  business,  needs  no  argument." 

"  And  where  a  business  is  a  proper  subject  of  the  police 
power,  the  legislature  may,  in  the  exercise  of  that  power, 
adopt  any  measures  not  in  conflict  with  some  provision  of 
the  constitution,  that  it  sees  fit,  provided,  only,  they  are 
such  as  have  some  relation  to,  and  some  tendency  to  accom- 
plish, the  desired  end;  and,  if  the  measures  adopted  have 
such  relation  or  tendency,  the  courts  will  never  assume  to 
determine  whether  they  are  wise,  or  the  best  that  might 
have  been  adopted." 

The  New  York  statute  against  ticket  scalping  was  very 

1  Burdick  v.  People,  149  111.  600,  611;  State  v.  Corbett,  57  Minn.  345; 
Janrien  v.  State  (Tex.  Or.  App.  99),  51  S.  W.  1126. 

§  123 


PROHIBITION    OF   TICKET-BROKERAGE.  525 

drastic  in  the  penalties  which  it  prescribed  for  a  violation 
of  the  statute,  the  highest  being  imprisonment  in  the  peni- 
tentiary. When  a  case  under  the  law  appeared  on  appeal 
before  the  Appellate  Division  of  the  Supreme  Court  of  the 
First  Department,  the  constitutionality  of  the  act  was  sus- 
tained on  the  ground,  that  the  ticket  of  a  common  carrier 
was  not  property  in  the  constitutional  sense,  the  right  to 
alienate  which  was  protected  against  statutory  curtailment 
by  the  constitutional  guaranties.1  Judge  Patterson,  in  this 
case,  says :  — 

"  The  buying  and  selling  of  railroad  tickets  is  nothing 
but  the  buying  and  selling  of  the  evidence  which  entitles  a 
person  to  transportation  by  a  public  carrier.  The  issuing 
of  tickets  is  a  feature  of  the  carriers'  business.  The  regu- 
lation and  control  of  the  business  of  a  public  carrier  is  origi- 
nally with  the  sovereign  power  conferring  the  franchise  upon 
that^carrier,  if  it  be  a  corporation,  or  of  the  State  in  which 
the  business  is  carried  on,  if  the  carrier  is  not  a  corpora- 
tion. If  the  exercise  of  that  power  of  regulation  and  con- 
trol prevents  a  third  party  from  securing  a  personal  advan- 
tage, which  he  calls  his  business,  he  is  not  deprived  of  any 
constitutional  right." 

And  the  same  position  is  taken  by  the  dissenting  judges 
of  the  Court  of  Appeals,2  when  an  appeal  was  taken  to  that 
court,  adding  the  additional  argument  that  the  prohibition 
of  the  business  of  selling  the  tickets  of  common  carriers  by 
others  than  the  duly  authorized  agents  of  the  railroads  and 
other  common  carriers,  was  a  reasonable  provision  for  pre- 
venting fraud  upon  travelers  by  making  the  common  car- 
riers and  their  agents  the  sole  vendors  of  tickets.  Says 
Judge  Martin :  — 

"  The  real  inquiry  here  presented  is  whether  the  legisla- 
ture may  provide  that  steamboat  and  railroad  tickets  shall 

1  People  v.  Warden  of  City  Prison,  26  App.  Div.  228;  50  N.  Y.  S.  6b. 
8  People  ex  rel.  Tyroler  v.  Warden  of  City  Prison,  157  N.  Y.  116. 

§  123 


526     REGULATION  OF  TRADES  AND  OCCUPATIONS. 

not  be  sold  by  irresponsible  or  unknown  persons,  thus  ex- 
posing travelers  to  fraud,  and  require  them  to  be  so  sold 
that  the  companies  issuing  them  shall  be  responsible  to  the 
traveler  who  purchases  them.  When  properly  considered 
it  is  obvious  that  the  purpose  and  effect  of  this  law  was  to 
require  the  sale  of  passage  tickets  in  a  manner  which  would 
render  the  companies  themselves  responsible  for  the  sale. 
While  the  statute  forbids  persons  other  than  the  companies 
or  their  duly  constituted  agents  making  such  sales,  still,  its 
purpose  was  to  compel  the  companies  to  sell  their  own 
tickets  and  thus  become  responsible. 
*********** 

'*  That  the  sale  of  tickets  by  brokers  has  long  been  a 
source  of  fraud,  both  upon  the  traveling  public  and  the 
companies  issuing  them,  is  a  matter  of  common  knowledge, 
and  of  its  existence  there  can  be  no  doubt.  Indeed,  it  is 
doubtful  if  the  business  would  exist  but  for  the  profit  de- 
rived from  improper  or  fraudulent  sales.  The  fraud  of 
ticket  brokers  assumes  various  forms,  such  as  changing 
tickets  which  are  not  transferable  by  the  erasure  of  the 
name,  the  place  of  destination,  or  the  date,  and  substitut- 
ing others,  and  by  otherwise  changing  the  tickets,  or  by 
obliterating  the  dates  so  as  to  render  their  improper  use 
possible.  Moreover,  the  existence  of  such  brokers  incites 
the  stealing  of  tickets,  and  encourages  the  employees  of  the 
companies  in  defrauding  their  employers  by  furnishing  a 
market  for  stolen  tickets  and  those  not  canceled  by  dis- 
honest officers.  That  the  sale  of  such  tickets  is  a  fraud 
upon  both  the  carrier  and  the  honest  traveler  cannot  be 
successfully  denied.  Again,  when  a  passenger  loses  his 
ticket,  instead  of  its  being  restored  to  him,  resort  may  at 
once  be  had  to  those  agencies  to  realize  upon  it.  Hardly 
a  week  passes  when  the  public  prints  do  not  contain  one 
or  more  accounts  of  the  grossest  fraud  upon  honest  but 
unwary  travelers,  which  would  not  occur  but  for  their  ex- 
istence. Therefore,  the  existence  of  ticket  brokers  is  a 
§  123 


PROHIBITION    OF    TICKET-BROKERAGE.  527 

continual  menace  to  both  passengers  and  carriers.  It  tends 
to  encourage  forgery,  larceny,  the  receipt  and  sale  of  stolen 
and  fraudulent  tickets,  the  perpetration  of  frauds  upon 
travelers,  and  is  clearly  a  disadvantage  to  the  honest  trav- 
eler as  well  as  to  the  carrier.  Hence,  the  necessity  for  this 
statute  is  obvious,  and  I  think  the  legislature  was  wise  in 
adopting  it." 

"  While  every  person  has  a  right  to  pursue,  in  a  legitimate 
manner,  any  lawful  calling  he  may  select,  and  the  State 
can  neither  compel  him  to  adopt  any  particular  calling  nor 
prohibit  his  engaging  in  any  legitimate  business,  still,  it,  in 
the  exercise  of  its  police  power,  is  authorized  to  subject  all 
occupations  to  such  restraint  as  may  be  necessary  to  pre- 
vent their  becoming  harmful  to  the  public,  and  where  an 
occupation  threatens  public  injury  and  its  suppression  is 
essential  to  the  public  welfare,  the  State  may  prevent  its 
pursuit.1 

"The  State  has  a  right  to  reasonably  control  the  manner 
in  which  public  corporations  shall  transact  their  business, 
and  to  protect  the  public  against  fraud.  This  statute  does 
nothing  more.  Its  effect  is  to  require  railroad  and  steam- 
boat companies  to  sell  their  own  tickets  in  a  manner  that 
will  render  them  responsible  to  the  purchaser  for  any  fraud 
or  mistake  that  may  be  perpetrated  or  may  occur.  The 
property  and  business  of  these  companies  is  clothed  with  a 
public  interest  which  makes  them  of  public  consequence, 
affecting  the  community  at  large;  and  hence,  they  may  be 
controlled  by  any  police  regulation  which  is  necessary  to 
secure  the  public  good.2  It  is,  therefore,  reasonable  that 
the  State  may  provide  any  preventive  remedy  necessary 
when  the  frequency  of  fraud  or  the  difficulty  in  circumvent- 
ing it  is  so  great  that  no  other  means  will  prove  efficacious. 

1  Wynehamer  ».  People,  13  N.  Y.  378,  487;  Metropolitan  Board  v. 
Barrie,  84  N.  Y.  667. 

1  People  v.  Budd,  117  N.  Y.  1 ;  People  ex  rel.  v.  B.  &  A.  R.  B.  Co.,  70 
N.  Y.  669;  Munn  v.  Illinois,  94  U.  8.  113. 

§  123 


528  REGULATION   OF   TRADES    AND    OCCUPATIONS 

A  regulation  which  is  instituted  for  the  purpose  of  prevent- 
ing fraud  or  injury  to  the  public,  and  which  tends  to  fur- 
nish such  protection,  is  clearly  constitutional.  This  propo- 
sition is  sustained  by  numerous  authorities  in  this  State  and 
elsewhere,  and  is  an  important  element  of  the  police  power 
which  is  vested  in  the  legislature. 

"  It  seems  clear  that  the  judgment  in  this  case  should  be 
upheld  upon  the  grounds: — 

«*  1.  Railroad  and  steamboat  tickets  can  in  no  proper  sense 
be  regarded  as  property  in  which  third  persons  have  any 
vested  interest.  They  are  mere  tokens  or  evidences  of  a 
right  to  transportation  in  which  even  the  traveler  who  has 
purchased  one  has  but  a  special  interest,  and  to  which  the 
companies  have  title  and  the  ultimate  right  of  posses- 
sion.1 

"  2.  The  sale  of  railroad  and  steamboat  tickets  by  persons 
other  than  the  companies  or  their  agents  as  a  business 
ness  is  not  an  employment  in  which  they  have  any  unqual- 
ified right  to  engage.  A  ticket  is  a  mere  incident  to 
the  business  of  the  companies  in  transporting  passengers. 
Like  a  baggage  check,  it  is  merely  a  method  adopted  by 
them  for  the  transaction  of  their  own  business.  The  ticket 
itself  possesses  none  of  the  ordinary  elements  of  property 
and  cannot,  without  the  consent  of  the  companies,  form 
the  basis  of  a  legitimate  independent  business.  At  most  it 
is  but  an  evidence  of  the  arrangement  between  the  compa- 
nies and  their  passengers  in  which  others  have  no  lawful 
interest.  No  right  to  transfer  is  given,  and  generally, 
none  is  intended.  To  hold  that  every  person  has  a  con- 
stitutional right  to  interfere  with  the  relations  between 
passengers  and  carriers,  which  is  superior  to  the  control  of 
the  legislature,  would  result  in  extending  the  restraints 
imposed  upon  the  lawmaking  power  much  farther  than 

i  Hibbard  v.  N.  Y.  &  E.  R.  R.  Co.,  15  N.  Y.  455,  466;  Qiiimby  v.  VaiK 
derbilt,  17  N.  Y.  306;  Rawson  o.  Pa.  R.  R.  Co.,  48  N.  Y.  212. 

§  123 


PROHIBITION   OF   TICKET-BROKERAGE.  529 

they  have  hitherto  been  supposed  to  exist,  and  would  be 
an  interference  with  the  power  vested  in  the  legislative 
branch  of  the  State  government  that  is  wholly  unwar- 
ranted. It  seems  to  me  that  third  persons  have  no  con- 
stitutional right  to  interfere  with  the  relations  between 
the  carrier  and  passenger  by  the  purchase  and  sale  without 
its  consent  of  tickets  issued  by  the  former,  and  that  to 
establish  such  a  right  would  be  unauthorized  by  any  exist- 
ing principle  of  constitutional  law.  It  is  true  the  act 
recognizes  the  right  of  third  persons  to  make  sales  of 
passage  tickets,  but  that  right  is  a  limited  one  and  can  be 
properly  exercised  only  by  an  agent  of  one  of  the  compa- 
nies furnishing  the  traveler  with  the  transportation  for 
which  the  ticket  is  purchased.  But  it  is  to  be  observed 
that  as  such  sales  are  to  be  made  by  one  of  the  companies 
furnishing  the  transportation,  the  company  making  it  be- 
comes Vesponsible  to  the  passengers  and  other  carriers  for 
any  fraud  perpetrated  by  its  agent,  and  is  in  harmony  with 
the  general  purpose  of  the  act." 

The  majority  of  the  judges  of  the  Court  of  Appeals, 
however,  reversed  the  judgment  of  the  Supreme  Court, 
and  held  the  act  to  be  unconstitutional  on  two  principal 
grounds:  (1)  Because  the  State  has  no  right  to  prohibit 
altogether  the  carrying  on  of  a  business  which  is  not  inher- 
ently fraudulent,  simply  because  some  of  those  who  are 
engaged  therein  have  systematically  practiced  gross  frauds 
upon  others;  and  (2)  because  the  act  in  question  does  not 
muke  the  business  of  ticket  brokerage  unlawful,  but  makes 
it  a  monopoly,  and  vests  such  monopoly  in  the  transporta- 
tion companies  of  the  State.  The  court  also  held  that  the 
argument,  that  a  transportation  ticket  is  not  property  in 
the  constitutional  sense,  is  not  tenable.  The  importance 
of  the  principles  of  constitutional  law  justifies  me,  I  think, 
in  giving  apace  to  the  following  lengthy  quotation  from  the 
opinion  of  Chief  Judge  Parker,  who  pronounced  judgment 
for  the  court. 

34  §   123 


530  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

Judge  Parker  said  in  part :  — 

'*  The  statute  that  appellant  insists  is  in  derogation  of  the 
limitation  placed  upon  the  legislative  power  by  the  people, 
through  the  constitution  of  the  State,  reads  as  follows : 
*  Section  1.  The  Penal  Code  is  hereby  amended  by  insert- 
ing therein  a  new  section,  to  be  known  as  Section  615,  to 
read  as  follows  :  Section  615.  Sale  of  passage  tickets  on 
vessels  and  railroads  forbidden  except  by  agents  specially 
authorized.  No  person  shall  issue  or  sell,  or  offer  to  sell, 
any  passage  ticket,  or  any  instrument  giving  or  purporting 
to  give  any  right,  either  absolutely  or  upon  any  condition 
or  contingency  to  a  passage  or  conveyance  upon  any  vessel 
or  railway  train,  or  a  berth  or  stateroom  in  any  vessel,  un- 
less he  is  an  authorized  agent  of  the  owners  or  consignees 
of  such  vessels,  or  of  the  company  running  such  train, 
except  as  allowed  by  Sections  616  and  622 ;  and  no  person 
is  deemed  an  authorized  agent  of  such  owners,  consignees 
or  company,  within  the  meaning  of  the  chapter,  unless  he 
has  received  authority  in  writing  therefor,  specifying  the 
name  of  the  company,  line,  vessel  or  railway  for  which  he 
is  authorized  to  act  as  agent,  and  the  city,  town  or  village, 
together  with  the  street  and  street  number,  in  which  his 
office  is  kept,  for  the  sale  of  tickets.' 

"  *  Section  2.  Section  six  hundred  and  sixteen  of  the 
Penal  Code  is  hereby  amended  so  as  to  read  as  follows : 
Sec.  616.  Sale  by  authorized  agents  restricted.  No  per- 
son, except  as  allowed  in  Section  six  hundred  and  twenty- 
two,  shall  ask,  take  or  receive  any  money  or  valuable 
thing  as  a  consideration  for  any  passage  or  conveyance 
upon  any  vessel  or  railway  train,  or  for  the  procurement 
of  any  ticket  or  instrument  giving  or  purporting  to  give  a 
right,  either  absolutely  or  upon  a  condition  or  contingency, 
to  a  passage  or  conveyance  upon  a  vessel  or  railway  train, 
or  a  berth  or  stateroom  on  a  vessel,  unless  he  is  an  author- 
ized agent  within  the  provisions  of  the  last  section ;  nor 
shall  any  person,  as  such  agent,  sell  or  offer  to  sell,  any 
§  123 


PROHIBITION    OF   TICKET-BROKERAGE.  531 

such  ticket,  instrument,  berth  or  stateroom,  or  ask,  take 
or  receive  any  consideration  for  any  such  passage,  convey- 
ance, berth  or  stateroom,  except  at  the  office  designated 
in  his  appointment,  nor  until  he  has  been  authorized 
to  act  as  such  agent  according  to  the  provisions  of  the 
last  section,  nor  for  a  sum  exceeding  the  price  charged  at 
the  time  of  such  sale  by  the  company,  owners  or  consignees 
of  the  vessel  or  railway  mentioned  in  the  ticket.  Nothing 
in  this  section  or  chapter  contained  shall  prevent  the  prop- 
erly authorized  agent  of  any  transportation  company  from 
purchasing  from  the  properly  authorized  agent  of  any 
other  transportation  company  a  ticket  for  a  passenger  to 
whom  he  may  sell  a  ticket  to  travel  over  any  part  of  the 
line  for  which  he  is  the  properly  authorized  agent,  so  as 
to  enable  such  passenger  to  travel  to  the  place  or  junction 
from  which  his  ticket  shall  read.' 

"  Tl^e  remaining  portion  of  the  section  relates  to  the  re- 
demption of  tickets  purchased  from  an  authorized  agent  of 
a  railway  company,  under  certain  contingencies,  and  within 
certain  periods  of  time,  and  is  not  in  anywise  involved  in 
this  appeal. 

"  Having  observed  how  the  statute  reads,  it  will  be  well 
next  to  analyze  it  and  see  if  we  can  find  out  what  was 
intended  to  be  accomplished,  and  is  in  fact  accomplished, 
by  the  phraseology  of  the  statute,  in  order  that  we  may 
ascertain  whether  the  statute  is  in  contravention  of  any  of 
the  rights  secured  by  the  constitution  to  the  citizen.  It 
will  be  observed,  in  the  first  place,  that  it  does  not  pro- 
hibit the  sale  of  tickets  absolutely,  nor  does  it  limit  to  tho 
particular  transportation  company  over  whose  route  he 
desired  to  be  conveyed,  the  right  to  sell  tickets  to  the 
traveler.  It  may  be  said  in  passing  that  the  last  assertion 
is  in  conflict  with  the  position  taken  by  the  learned  judge 
who  wrote  the  opinion  of  the  appellate  division,  for  he 
assumes  that  as  only  persons  appointed  agents  can  sell,  the 
effect  of  the  provision  is  that  a  corporation  *  shall  only 

§  123 


532  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

sell  through  its  agents,  and  is  merely  a  declaration  that  the 
corporation  itself  was  to  sell  its  tickets.' 

"  The  first  section  and  the  first  part  of  the  second  section 
do  restrict  the  sale  of  passage  tickets  to  agents  specially 
authorized  by  transportation  companies,  and  if  there  was 
nothing  else  in  the  statute  upon  the  subject,  it  would  bear 
the  construction  put  upon  it,  that  its  only  effect  is  to  con- 
fine the  right  to  sell  passage  tickets  of  a  corporation  to 
that  corporation  itself,  which  can  act  only  through  agents; 
but  between  the  opening  and  the  closing  sentences  of  the 
second  section  may  be  found  the  following :  *  Nothing  in 
this  section  or  chapter  contained  shall  prevent  the  properly 
authorized  agent  of  any  transportation  company  from 
purchasing  from  the  properly  authorized  agent  of  any  other 
transportation  company  a  ticket  for  a  passenger  to  whom 
he  may  sell  a  ticket  to  travel  over  any  part  of  the  line  for 
which  he  is  the  properly  authorized  agent,  so  as  to  enable 
such  passenger  to  travel  to  the  place  or  junction  from 
which  his  ticket  shall  read.'  Thus  we  see  that  the  moment 
a  man  becomes  the  agent  of  a  transportation  company  he 
is  by  that  designation  authorized  to  buy  tickets  of  any 
other  transportation  company  in  the  United  States  or  the 
world,  and  may  sell  such  tickets  to  any  person  who  applies 
for  them.  In  the  sale  of  tickets  of  the  various  transporta- 
tion companies,  other  than  those  of  the  company  of  which 
he  is  an  agent,  he  necessarily  acts  as  a  broker.  He  can  buy 
the  tickets  and  sell  them  again,  making  a  profit  that  may 
perhaps  depend  more  or  less  on  the  degree  of  competition 
between  railroads  in  various  parts  of  the  country.  Clearly, 
the  agent  of  a  transportation  company,  in  the  purchase  and 
sale  of  tickets  of  foreign  corporations,  is  not  engaged  in 
selling  the  passage  tickets  of  the  transportation  company 
appointing  him.  It  is  not  the  sale  of  the  tickets  of  his 
principal  alone  that  the  agent  is  thus  engaged  in ;  but  when 
a  transportation  company  appoints  an  agent  to  sell  its 
tickets,  then  the  State,  by  this  statute,  steps  in  and 
§  123 


PROHIBITION    OF    TICKET-BROKERAGE.  533 

attempts  to  clothe  him  with  the  power  which  it  takes  from 
all  other  citizens  to  deal  in  the  tickets  of  as  many  other 
transportation  companies  as  he  may  be  able  to  make  satis- 
factory arrangements  with. 

««  This  leads  us  to  note  another  interesting  feature  of  this 
remarkable  statute.  The  buying  and  selling  of  passage 
tickets  is  not  abolished  ;  it  is  only  condemned  where  the 
seller  has  not  authority  from  some  one  of  the  transportation 
companies  to  act  as  its  agent.  It  has  happened  before  that 
for  the  protection  of  the  people  the  lawmaking  power  has 
provided  for  an  examination  for  the  purpose  of  ascertain- 
ing whether  applicants  possessed  suitable  qualifications  as 
to  character,  intelligence  and  financial  responsibility  to  fill 
certain  positions  of  trust,  or  to  engage  in  a  business  which 
might  prove  dangerous  to  the  people  in  the  hands  of  a  per- 
son either  incompetent  or  of  bad  character ;  but  in  no  in- 
stance has  it  conferred  a  general  and  unlimited  power  of 
appointment  upon  a  class  of  persons  or  corporations  wholly 
unconnected  with  the  State  government.  It  may  possibly 
be  that  there  was  such  a  situation  as  would  have  justified  an 
enactment  placing  some  restrictions  upon  those  engaged  in 
the  selling  of  passage  tickets  and  prescribing  penalties  by 
way  of  fine  or  imprisonment  for  those  who  should  break 
over  such  restraints.  Our  excise  legislation  affords  an 
illustration.  By  its  provisions  all  are  permitted  to  sell 
liquor  within  certain  limitations  that  apply  to  all  citizens 
alike,  and  for  the  violation  of  the  regulations  of  the 
traffic  are  provided  certain  penalties  that  are  expected  to 
assure  to  the  public  some  measure  of  protection  from  non- 
law-abiding  citizens  engaged  in  the  business.  But  this  act 
simply  turns  over  to  the  transportation  companies  the 
selection  of  those  who  are  hereafter  to  be  permitted  to  sell 
tickets.  It  imposes  no  restraints  whatever  upon  the  ap- 
pointing power,  nor  upon  the  agents  selected,  other  than 
that  in  the  purchase  of  tickets  he  must  confine  himself  to 
the  properly  authorized  agents  of  the  transportation  com- 

§  123 


534  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

panics.  The  business  of  buying  and  selling  tickets,  as  to 
such  agents,  continues  to  be  a  legitimate  business,  but  to  all 
citizens  other  than  those  who  may  be  selected  by  the  trans- 
portation companies,  the  right  to  buy  and  sell  tickets  is 
denied,  and  an  actual  sale  by  them  constitutes  a  felony.  The 
act  itself  is  silent  as  to  the  motive  of  its  enactment  by  the 
legislature,  and  it  contains  no  suggestion  as  to  the  public 
interests  which  its  purpose  is  to  subserve. 

"  Ticket  brokerage  as  a  business  has  been  in  existence  for 
many  years.  It  is  a  matter  of  common  knowledge  that  at 
great  agencies  such  as  Cook's  and  Gaze's,  tickets  can  be 
purchased  over  a  great  portion  of  the  transportation  routes 
of  the  world.  Intending  travelers  in  great  numbers  have 
gone  to  these  agencies  for  advice  as  to  choice  of  routes  to 
be  taken  in  contemplated  journeys  and  to  purchase  the 
tickets  for  the  trip,  whether  it  should  require  days,  or 
weeks  or  months  to  make  it.  The  traveling  public  in  large 
numbers  have  come  to  make  use  of  the  facilities  afforded  by 
such  agencies,  of  which  there  are  now  very  many.  And 
Cook's  and  Gaze's  are  among  the  agencies  that  must  go  out 
of  business  in  this  State  if  this  statute  can  live,  unless  some 
transportation  company  shall  deem  it  wise  to  clothe  them 
with  the  authority  to  act  as  its  agents. 

"  It  is  asserted  by  counsel  that  the  traveling  public  and  the 
transportation  companies  have  been  so  defrauded  by  the 
acts  of  the  brokers  in  the  selling  of  unused  or  alleged  to  be 
unused  passage  tickets,  as  to  call  for  legislation  of  a 
protective  character,  of  which  this  statute  is  the  outcome. 
The  tendency  of  the  times  undoubtedly  is  to  rush  to  the 
legislature  for  a  cure  for  all  the  grievances  of  citizens, 
whether  real  or  imaginary,  and  many  novel  experiments  in 
legislation  are  the  result.  But  usually  in  case  of  wrongs 
penalties  have  been  provided.  It  is  novel  legislation  indeed 
that  attempts  to  take  away  from  all  the  people  the  right  to 
conduct  a  given  business  because  there  are  wrongdoers  in 
it,  from  whose  conduct  the  people  suffer.  But  where  in 
§  123 


PROHIBITION   OF   TICKET-BROKERAGE.  535 

the  statute  is  to  be  found  the  evidence  that  its  purpose  is 
to  prevent  fraud?  '  In  the  title  of  the  act,'  answers 
counsel,  and  with  that  answer  he  has  to  be  content.  For 
while  the  act  is  entitled  '  Frauds  in  the  sale  of  passage 
tickets,'  the  body  of  the  statute  does  not  contain  any 
reference  to  forged,  altered,  used  or  stolen  tickets.  The 
sale  of  such  tickets  is  made  a  punishable  offense  under 
other  sections  of  the  Penal  Code.  The  provisions  of  the 
act,  therefore,  have  reference  to  the  selling  of  valid  tickets, 
regularly  issued  by  a  transportation  company.  Can  the 
legislature  declare  such  sales  to  be  fraudulent,  or  prohibit 
them  on  the  ground  that  it  tends  to  prevent  fraud?  If  the 
act  prohibited  is  fraudulent,  there  can  be  no  doubt  that  the 
legislature,  under  its  police  power,  may  provide  for  its 
punishment ;  but  whether  it  may,  under  such  power,  in- 
terdict the  sale  of  a  valid  ticket  by  one  person  to  another 
upon  the  pretext  that  fraud  will  thus  be  prevented,  pre- 
sents a  very  different  question.  I  confess  I  am  unable  to 
see  how  such  a  sale  defrauds  a  transportation  company. 
If  a  transportation  company  sells  a  ticket  from  New  York 
to  San  Francisco,  it  undertakes  to  carry  the  holder  from 
one  place  to  the  other.  It  costs  the  company  no  more  to 
carry  one  person  than  it  does  the  other.  How  then  can  it 
be  defrauded  or  in  any  way  prejudiced  by  the  transfer  of 
such  a  ticket  by  the  purchaser  to  another  person  ?  It  is 
said  that  the  prohibition  of  such  a  sale  tends  to  protect  the 
traveler  from  being  defrauded.  If  it  is  a  sale  of  a  valid 
ticket,  no  fraud  can  possibly  result,  and  if  it  is  not  a  sale 
of  a  valid  ticket,  then  the  sale  is  fraudulent  and  is  pro- 
hibited by  other  provisions  of  the  Penal  Code. 

**  Only  one  prop  remains  which  it  is  pretended  can  sup- 
port the  weight  of  this  statute,  and  that  is,  that  the  penal 
laws  not  having  proved  sufficiently  efficacious  to  wholly 
prevent  fraud,  an  emergency  is  presented  which  justifies 
the  taking  away  from  the  general  public  the  right  to  engage 
in  the  business  of  ticket  selling. 

§  123 


536  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

"  Counsel  argue  that  the  helpfulness  of  the  ticket  broker 
in  securing  to  the  traveling  public  the  benefits  of  such  com- 
petition was  of  such  a  fraudulent  character  as  to  wholly  jus- 
tify the  legislation,  and  appeal  to  the  decisions  quoted  from 
in  support  of  such  contention.  But  we  pass  for  the  present 
the  subject  of  motive,  to  be  again  referred  to  when  we  come 
to  consider  whether,  under  the  police  power,  the  legislation 
can  be  justified.  Whatever  the  legislature's  motive,  the 
fact  is,  that  it  has  passed  an  act  which  does  not  declare 
ticket  brokerage  unlawful,  for  it  allows  any  person  who 
may  be  fortunate  enough  to  secure  an  appointment  as  agent 
for  a  transportation  company  to  engage  in  ticket  broker- 
age ;  but  the  act  does  declare  that  if  any  person,  other  than 
an  agent  of  a  transportation  company,  undertakes  to  en- 
gage in  the  passenger  ticket  brokerage  business  he  shall  be 
guilty  of  a  felony;  in  other  words,  that  it  is  unlawful  for 
all  citizens  of  New  York  to  engage  in  the  buying  and  sell- 
ing of  passage  tickets  unless  empowered  to  do  so  by  the 
written  appointment  of  a  transportation  company. 

"Much has  been  said  in  argument  with  reference  to  this 
statute  in  a  more  agreeable  vein,  placing  the  statute  in  a 
somewhat  more  attractive  form,  but  it  is  as  well  to  go  beneath 
the  surface  and  get  at  the  truth,  which  is  that  the  statute 
was  intended  to  and  does,  in  fact,  vest  the  control  of  the 
sale  of  passage  tickets  within  this  State,  not  only  of  trans- 
portation companies  doing  business  in  this  State,  but 
throughout  the  world,  exclusively  in  the  hands  of  such 
companies. 

"The  business  of  selling  passage  tickets  continues,  there- 
fore, to  be  regarded  as  a  lawful  and  legitimate  business. 
Public  policy  is  still  declared  to  favor  a  business  which 
recognizes  the  propriety  of  the  middleman  between  the 
passenger  and  the  transportation  company,  but  the  right  to 
engage  in  it  is  denied  to  the  general  public. 

«»  The  question  then  is  whether  the  organic  law  prohibits 
legislation  of  this  character. 
§  123 


PROHIBITION   OF  TICKET-BROKERAGE.  537 

"  Before  referring  to  the  provisions  of  the  constitution 
that,  it  is  confidently  asserted,  condemn  such  legislation,  it 
may  not  be  out  of  place  to  note  that  the  granting  of  mo- 
nopolies or  exclusive  privileges  to  corporations  or  persons 
has  been  regarded  as  an  invasion  of  the  rights  of  others 
to  follow  a  lawful  calling  and  an  infringement  of  personal 
liberty,  from  the  times  of  the  reigns  of  Elizabeth  and 
James.  The  statute  of  21  Jac.,  abolishing  monopolies, 
has  been  from  the  time  of  its  enactment  regarded  as  a 
statutory  landmark  of  English  liberty,  and  that  nation  has 
jealously  preserved  it.  It  was  a  part  of  that  inheritance 
which  our  fathers  brought  with  them  and  incorporated 
into  the  organic  law,  to  the  end  that  the  lawmaking  power 
should  be  restrained  from  interference  with  it. 

**  It  is  not  contended  that  the  business  of  ticket  brokerage 
is  in  itself  of  a  fraudulent  character.  The  business  can 
be  honestly  conducted;  it  has  been  so  conducted  in  the 
past<by  honest  men  engaged  in  it;  and  the  most  that  is  as- 
serted is  that  there  are  some  men  engaged  in  the  business 
who  have  imposed  on  the  public.  The  same  assertion  can 
be  made  with  equal  truth  of  every  business,  trade  and  pro- 
fession. Because  some  coal  dealers  and  vendors  in  sugar 
cheat  in  weight,  and  dealers  in  paints  and  oils  in  meas- 
urements, and  in  tobacco  in  quality,  it  has  not  hitherto, 
we  venture  to  say,  been  thought  the  proper  remedy  to 
make  it  a  felony  for  persons  to  hereafter  engage  in  such 
business,  unless  they  shall  have  been  duly  appointed  as 
agents  by  the  corporations  manufacturing  or  producing  the 
product. 

"  Still  another  motive  for  this  enactment  is  suggested,  and 
that  is  that  its  real  purpose  is  to  enable  transportation  com- 
panies to  compel  others  with  which  they  may  enter  into 
pooling  arrangements  to  preserve  their  agreement  from 
secret  violation,  which  is  frequently  the  outcome  under 
the  present  ticket  brokerage  system,  which  offers  an  avenue 
by  which  the  weaker  corporation  to  such  an  agreement  can 

§  123 


538  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

dispose  of  its  tickets  at  a  price  lower  than  that  agreed 
upon. 

*********** 

*«  Again,  it  is  said  that  ticket  brokers  enable  the  railroads 
to  engage  in  unfair  competition.  This  is  accomplished  by 
the  sale  to  the  broker  by  a  competing  railroad,  at  much  less 
than  the  regular  rates,  of  a  block  of  tickets  that  the  broker- 
is  enabled  to  sell  to  his  customers,  and  this  to  a  certain 
extent  takes  travel  from  its  competitors.  An  opinion  is 
cited  in  which  the  court  in  another  jurisdiction  denounces 
the  ticket  scalper  for  engaging  in  a  business  of  this 
character,  and  pronounces  such  business  fraudulent  alike 
in  its  conception  and  operation  ;  but  we  pass  this  opinion 
without  other  comment  than  to  say  whatever  may  be  re- 
garded as  the  law  in  other  jurisdictions,  in  this  one  it  is 
well  established  that  the  public  welfare  is  best  subserved 
by  the  encouragement  of  competition,1  and  hence  this  so- 
called  reason  furnishes  no  support  to  the  claim  that  this 
legislation  was  for  the  public  good." 

To  one  who,  like  myself,  places  so  high  a  value,  as  a 
constitutional  protection  against  legislative  tyranny,  upon 
the  principle  that  a  legislature  cannot  constitutionally  pro- 
hibit a  trade  or  business  which  is  not  inherently  fraudulent, 
because  great  frauds  are  committed  by  some  who  are  en- 
gaged in  the  business,  or  because  the  character  of  the  bus- 
iness makes  the  practice  of  fraud  easy  and  its  detection 
difficult;  it  is  a  matter  of  great  gratification  that  these  later 
cases,  in  which  the  constitutionality  of  the  ticket-scalping 
laws  has  been  sustained,  do  not  rest  their  judgment  upon 
a  denial  of  that  principle,  although  most  of  the  opinions 
of  the  judges  do  refer  to  the  commission  of  these  frauds 
by  unauthorized  ticket  agents  as  a  justification  for  giving 
to  the  railroads  and  other  common  carriers  the  exclusive 
privilege  of  selling  such  tickets.  Their  chief  ground  for 

1  People  v.  Sheldon,  139  N.  Y.  263;  Judd  v.  Harrington,  id.  105. 
§  123 


PROHIBITION   OF   TICKET-BROKERAGE.  538 

holding  these  laws  to  be  constitutional  is  that  a  ticket  is 
only  a  token,  and  not  a  piece  of  property  which  is  the 
proper  subject  of  general  barter  and  sale  ;  that  it  is  merely 
evidence  of  a  contract  to  carry  the  holder  to  his  place  of 
destination,  and  that  its  sale  is  merely  an  incident  of  the 
business  of  a  common  carrier,  which  can  be  exclusively 
given  to  agents  of  their  own  appointment,  without  infring- 
ing their  constitutional  right  of  any  one  else  to  engage  in 
the  business  of  selling  the  tickets,  after  they  have  been 
issued  by  the  railroads.  This  argument  is  certainly  a  very 
strong  one,  if  it  be  conceded  that  a  ticket, — which  is 
not  expressly  declared  on  its  face  to  be  non-transferable 
and  which  does  not  contain  the  name  of  the  purchaser,  who 
alone  is  entitled  by  the  contract  to  make  use  of  it ;  —  in 
other  words,  that  a  general  ticket,  issued  by  a  transporta- 
tion company,  is  not  property,  whose  free  alienation  inter- 
vivos  is  guaranteed  by  the  constitution.  But  if  this  be 
denied,  and  such  a  ticket  be  held  to  be  as  much  property 
in  the  constitutional  sense  as  a  note  or  bond,  payable  to 
bearer,  there  is  nothing  in  the  argument  to  sustain  the 
constitutionality  of  the  ticket-scalping  law,  in  the  face  of 
the  undoubted  fact  that  the  purpose  of  these  laws  is  not 
so  much  the  prevention  of  frauds  upon  the  unsuspecting 
traveler,  as  the  furtherance  of  the  private  interests  of  the 
railroads  and  other  common  carriers.  I  am  inclined  to 
believe  that  the  policy  of  such  laws  is  a  part  of  the  general 
policy  of  combinations  of  railroads  in  maintaining  rates, 
and  are  designed  to  prevent  some  railroads  from  selling 
tickets  through  the  ticket-brokers  at  a  lower  rate  than  the 

O 

rate  fixed  by  the  combinations.  As  long  as  it  is  the  policy 
of  the  law,  not  only  to  refuse  aid  in  enforcing  such  com- 
binations, but  even  to  punish  those  who  enter  into  such 
combinations,  this  would  not  furnish  any  constitutional 
justification  for  these  laws.  But,  to  recur  to  the  argument 
that  a  ticket  is  not  property;  in  the  New  York  case,  Judge 
Bartlett  in  his  opinion  says  that  the  question,  whether  the 

§  123 


540  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

purchaser  of  a  ticket  can  be  denied  the  right  to  sell  it, 
was  not  before  the  court,  but  intimated  that  this  question 
would  be  answered  by  him  in  the  affirmative.  But  if  the 
purchaser  from  the  railroad  could  sell  the  ticket,  why  could 
not  his  vendee  sell  it  too?  So  that  we  return  to  the 
original  proposition,  whether  the  business  of  selling  trans- 
portation tickets,  once  issued  by  the  companies,  can  be 
lawfully  prohibited?  It  is  clear  that  the  railroads  may 
issue  tickets,  as  they  do,  which  are  non-transferable,  and 
when  their  non-transferable  character  is  stated  on  their  face, 
no  one  but  the  original  purchaser  can  make  use  of  them. 
And  if  it  is  the  policy  of  the  transportation  companies  to  issue 
that  kind  of  ticket,  they  must  take  the  measures  necessary 
to  secure  their  enforcement  of  that  condition.  There  is 
no  difference  between  a  railroad  ticket  and  any  other 
license  to  make  use  of  another's  property.  Unless  the 
license  is  non-transferable,  by  the  law  or  by  express  agree- 
ment of  the  parties,  it  is  as  much  the  proper  subject  of 
alienation  as  any  more  stable  right  of  interest  in  another's 
property. 

I  have  been  drawn  into  a  full  discussion  of  these  laws 
against  ticket-scalping,  because  I  believe  that  the  Court  of 
Appeals  have,  in  deciding  against  their  constitutionality, 
strengthened  the  constitutional  barriers,  not  only  against 
legislative  interferences  with  the  constitutional  liberty  in 
general,  but  also  against  the  extension  of  the  power  of  the 
legislature  to  create  legal  monopolies,  or  the  increase  of  the 
powers  of  those  already  existing,  whose  creation  has  been 
justified  by  the  apparent  necessity  of  choosing  between 
government  and  private  monopolies.1 

§  124.  Prohibition  of  sale  of  game  out  of  season  — 
Prohibition  of  export  of  game. —  In  a  subsequent  section3 
it  will  be  explained  that  laws  have  been  passed  in  most 

1  As  to  which  see  post,  §§  127, 128. 
s  §  151. 

§  124 


PROHIBITION    OF    SALE    OF   GAME    OUT    OF   SEASON.       541 

of  the  States,  which  prohibit  the  shooting  of  wild  game 
and  the  catching  of  certain  fish  during  certain  periods 
of  the  year;  and  in  some  cases  laws  have  been  passed,  pro- 
hibiting the  hunting  of  certain  game,  or  the  catching  of 
certain  fish,  for  a  year  or  more.  The  object  of  these  laws 
is  the  prevention  of  the  extinction  of  the  game  by  exces- 
sive hunting,  and  by  hunting  during  the  hatching  and  breed- 
ing seasons.  The  constitutional  aspect  of  these  laws  will  be 
discussed  in  the  subsequent  section.  The  simple  prohibi- 
tion of  hunting  and  fishing  during  the  prohibited  season 
has  not  proven  an  effective  protection.  And  for  that  rea- 
son, laws  have  been  enacted  in  a  number  of  the  States, 
which  prohibit  absolutely  the  sale  of  game  and  fish 
during  the  closed  season,  and  provide  appropriate  penalties 
for  enforcing  the  law.  These  laws  have  been  sustained  as 
constitutional  exercises  of  police  power.  In  one  case  the 
constitutionality  of  the  law  was  sustained,  although  it  pro- 
hibited during  the  closed  season  the  sale  of  quail  which  was 
killed  outside  of  the  State.1 

I  Another  common  regulation,  which  is  designed  to  prevent 
the  extinction  of  wild  game,  is  the  prohibition  of  the  con- 
signment out  of  the  State  for  sale  of  such  wild  game.  And 
the  regulations  have  been  sustained,  although  they  involve 
an  apparent  interference  with  interstate  commerce.2  In 
Minnesota,  a  law  prohibiting  the  consignment  to  a  mer- 
chant for  sale  of  any  part  of  a  deer,  elk,  moose,  or  caribou, 
except  the  head  or  skin,  was  sustained  ; 3  while  in  California, 
a  law  was  declared  to  be  constitutional  which  prohibited  the 
sale  of  any  part  of  the  deer.4  Notwithstanding  the  un- 
usual character  of  these  laws,  their  enactment  can  be  con- 


1  Roth  v.  State,  51  Ohio  St.  209. 

2  State  v.  Geer,  61  Conn.  144  (quail  or  grouse) ;  Organ  v.  State,  66  Ark. 
267  (flsh) ;  State  v.  Harrub,  95  Ala.  176  (oysters) ;  State  c.  Melvin,  95 
Ala.  176. 

3  State  v.  Chapel,  64  Minn.  384. 

4  Ex  parte  Maier,  103  Cal.  476. 

§  124 


542  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

stitutionally  sustained,  on  the  ground  that  the  welfare  of  all 
is  promoted  by  them,  without  imposing  any  unreasonable 
restraint  upon  the  individual. 

§  125.  Prohibition  of  the  liquor  trade.  —  This  phase 
of  police  supervision  is  not  only  the  most  common,  but  the 
moral  and  economical  conditions,  which  induce  its  exercise, 
are  so  great  and  pressing,  and  the  popular  excitement  at- 
tending all  agitations  against  intemperance,  like  all  popular 
agitations,  is  usually  so  little  under  the  control  of  reason, 
that  it  is  hard  to  obtain,  from  those  who  are  attempting  to 
form  and  mould  public  opinion,  any  approach  to  a  dispas- 
sionate consideration  of  the  constitutional  limitations  upon 
the  police  power  of  the  State,  in  its  application  to  the 
regulation  and  prohibition  of  the  liquor  trade.  Drunken- 
ness is  distressingly  common,  notwithstanding  the  great 
increase  in  the  number  of  those  who  practice  and  preach 
total  abstinence  from  the  use  of  intoxicating  liquors;  and 
the  multitude  of  cases  of  misery  and  want,  caused  directly 
by  this  common  vice,  cry  aloud  for  some  measure  whereby 
the  evil  of  drunkenness  may  be  banished  from  the  earth. 
It  is  no  wonder  when  the  zealous  reformer  contemplates 
the  careworn  face  of  the  drunkard's  wife,  and  the  rags  of 
his  children,  that  he  appeals  to  the  law-making  power  to 
enact  any  and  all  laws  which  seem  to  promise  the  banish- 
ment of  drunkenness  ;  forgetting,  as  it  is  very  natural  for 
him  to  do,  since  zealots  are  rarely  possessed  of  a  philoso- 
phical and  judicial  mind,  that  to  make  a  living  law,  it  must 
be  demanded,  and  its  enactment  compelled,  by  an  irresisti- 
ble public  opinion ;  and  where  the  law  in  question  does  not 
have  for  its  object  the  prevention  or  punishment  of  a  tres- 
pass upon  rights,  it  is  impossible  to  obtain-for  it  the  enthu- 
siastic and  practically  unanimous  support,  which  is  neces- 
sary to  secure  a  proper  enforcement  of  it.  Furthermore,  if 
in  any  community  public  opinion  is  so  aroused  into  activity 
as  to  be  able  to  secure  the  enforcement  of  a  law,  having 
§  125 


PROHIBITION   OF   THE   LIQUOR  TRADE.  543 

for  its  object  the  prevention  of  a  vice,  the  moral  force  of 
such  a  public  opinion  will  be  amply  sufficient  to  suppress  it. 
The  temperance  agitator  does  not  usually  dwell  on  these 
scientific  objections  to  temperance  laws,  or  if  he  does,  he  either 
gives  to  them  a  flat  and  unreasoning  denial,  which  makes 
all  further  argument  impossible,  or  he  justifies  the  enactment 
of  an  otherwise  useless  law  by  the  claim  that  the  enact- 
ment would  arouse  public  attention  to  the  evils  of  drunk- 
enness, and  by  making  persistent,  though  unsuccessful, 
attempts  to  enforce  the  law,  public  opinion  will  be  educated 
up  to  the  point  of  giving  the  proper  support  to  the  law. 
Educate  public  opinion  up  to  the  point  of  giving  proper 
support  to  the  law !  If  there  is  one  principle  that  the  his- 
tory of  law  and  legislation  teaches  with  unerring  precis- 
ion, it  is,  not  only  the  utter  futility  as  a  corrective  measure 
of  a  law,  whose  enactment  is  not  the  necessary  and  un- 
avoidable resultant  of  the  social  forces,  then  at  play  in 
organized  society,  but  also  the  great  injury  inflicted  upon 
law  in  general  by  the  enactment  of  laws  before  their  time. 
Nothing  so  weakens  the  reverence  for  law,  and  diminishes 
ite  effectiveness  as  a  restraint  upon  wrong  and  crime,  as  the 
passage  of  stillborn  laws,  laws  which  are  dead  letters  be- 
fore they  have  been  promulgated  to  the  people.  And  why 
are  laws  for  the  prevention  or  punishment  of  vice  ineffec- 
tual? Because  such  a  law  cannot  enlist  in  its  cause  the 
strong  motive  power  of  self-interest.  1  do  not  mean  that  it 
cannot  be  demonstrated  that  each  individual  in  the  com- 
munity will  be  benefited  by  the  effective  control  of  drunken- 
ness. But  I  do  mean  that  the  people  at  large  cannot  be  made 
to  feel,  sufficiently  acutely,  the  necessity  of  enforcing  these 
laws,  in  order  to  make  them  effective  remedies  for  the  sup- 
pression of  the  evil.  A  man  sees  a  pick-pocket  steal  his 
neighbor's  handkerchief,  while  on  his  way  through  the  pub- 
lic streets.  He  will  instantly,  involuntarily,  give  the  alarm, 
and  probably  would  render  what  aid  was  necessary  or  pos- 
sible, in  securing  the  arrest  of  this  offender  against  the  laws 

§  125 


544  REGULATION   OF    TRADES   AND   OCCUPATIONS. 

of  the  country.  The  same  man,  a  few  steps  further,  sees 
another  violating  the  law  against  the  sale  of  intoxicating 
liquor;  and  although  he  may  be  an  active  member  of  some 
temperance  organization,  he  will  be  sure  to  pass  on  his  way, 
and  say  and  do  nothing  to  bring  this  offender  to  justice. 
Why  this  difference  of  action  in  the  two  cases?  In  the 
first  case,  the  act  was  a  trespass  upon  the  right  of  property 
of  another,  and  self-interest,  through  fear  of  a  like  trespass 
upon  his  own  rights  of  property,  prompted  the  man  who 
saw  the  crime  to  aid  in  the  arrest  of  the  criminal.  In  the 
latter  case,  no  man's  rights  were  trampled  upon  ;  the  un- 
lawful act  inflicted  no  direct  damage  upon  the  man  who 
witnessed  the  violation  of  the  law,  and  consequently  self- 
interest  did  not  impel  him  to  activity  in  support  of  the  law. 

But  these  considerations  constitute  only  philosophical  ob- 
jections to  such  laws,  and  can  only  be  addressed  to  the  legis- 
lative body,  as  reasons  why  they  should  not  be  passed.  They 
do  not  enter  into  a  consideration  of  the  constitutionality  of 
the  laws  after  they  have  been  enacted.  If  the  constitution 
does  not  prohibit  the  enactment  of  these  laws,  the  only  ob- 
stacle in  the  way  of  their  passage  is  the  unwillingness  of 
the  legislators.  The  question  to  be  answered  is,  therefore, 
are  the  laws  for  the  regulation  and  prohibition  of  the  liquor 
trade  constitutional?  The  preceding  sections  of  the  pres- 
ent chapter  contain  an  enunciation  of  all  the  principles  of 
constitutional  law,  which  are  necessary  to  the  solution  of 
the  present  problem.  But  a  recapitulation  is  necessary,  be- 
fore applying  them  to  the  particular  case  in  question. 

It  has  been  demonstrated,  and  satisfactorily  explained  in 
its  application  to  a  sufficient  number  of  parallel  and  similar 
cases,  in  order  to  lay  it  down  as  an  invariable  rule,  that  no 
trade  can  be  subjected  to  police  regulation  of  any  kind, 
unless  its  prosecution  involves  some  harm  or  injury  to  the 
public  or  to  third  persons,  and  in  any  case  the  regulation 
cannot  extend  beyond  the  evil  which  is  to  be  restrained. 
It  has  also  been  maintained  and,  I  think,  satisfactorily  es- 
§  125 


PROHIBITION   OF   THE    LIQUOR   TRADE.  545 

tablished,  that  no  trade  can  be  prohibited  altogether,  unless 
the  evil  is  inherent  in  the  character  of  the  trade,  so  that  the 
trade,  however  conducted,  and  whatever  may  be  the  char- 
acter of  the  person  engaged  in  it,  must  necessarily  produce 
injury  upon  the  public  or  upon  individual  third  persons. 
It  has  likewise  been  shown  that,  while  vice,  as  vice,  can 
never  be  the  subject  of  criminal  law,  yet  a  trade,  which  has 
for  its  object  or  necessary  consequence,  the  provision  of 
means  for  the  gratification  of  a  vice,  may  be  prohibited, 
and  its  prosecution  made  a  criminal  offense.  These  princi- 
ples, if  sustainable  at  all,  must  have  an  universal  application. 
They  admit  of  no  exceptional  cases.  If  the  reader  has 
given  his  assent  to  the  truth  of  them,  in  their  application  to 
other  cases  of  police  regulation  of  employments,  his  inabil- 
ity to  adhere  to  them,  in  their  application  to  the  police 
regulation  of  the  liquor  trade,  indicates  either  a  lack 
of  courage  to  maintain  his  convictions  in  the  face  of  popu- 
lar clamor,  or  an  obscuration  of  his  judgment  through  his 
sympathetic  emotions,  which  are  aroused  in  considering  the 
gigantic  evil  to  be  combated. 

It  has  never  been  claimed  that  any  one  could  be  punished 
for  drunkenness,  unless  he  thrusts  the  fact  upon  the  atten- 
tion of  the  public,  so  that  it  offends  the  sensibilities  of  the 
community,  and  in  consequence  becomes  a  public  offense. 
If  a  man  displays  his  drunkenness  on  the  public  thorough- 
fares to  the  annoyance  and  inconvenience  of  the  public,  he 
can  be  punished  therefor.  But  if  he  chooses  to  degrade 
himself  by  intoxication  in  the  privacy  of  his  own  home  or 
apartments,  he  commits  no  offense  against  the  public, 
and  is  consequently  not  subject  to  police  regulation.  But 
the  man  who  proposed  to  make  a  profit  out  of  his  proneness 
to  drunkenness,  would  be  guilty  of  a  public  wrong,  and 
could  be  punished  for  it.  It  is  perfectly  reasonable  for  the 
law  to  prohibit  the  sale  of  liquor  to  minors,  lunatics,  per- 
sons under  the  influence  of  liquor  and  confirmed  drunkards, 
and  impose  a  penalty  upon  the  dealer  who  knowingly  does 

35  §    125 


546  REGULATION   OF   TRADES    AND   OCCUPATIONS. 

90.  In  very  many  of  the  States  there  are  statutes  in  which 
it  is  provided,  that  whoever  is  injured  by  the  wrongful  acts 
of  a  drunken  person  may  maintain  an  action  for  damages 
against  the  dealer  in  liquor  who  sold  or  gave  the  liquor 
which  caused  intoxication  in  whole  or  in  part,  where  the 
intoxicated  person  was  neither  a  confirmed  drunkard,  nor 
a  minor,  nor  a  lunatic,  nor  under  the  influence  of  liquor, 
when  he  purchased  the  liquor.  This  legislation  has  been 
frequently  sustained  by  the  courts  in  its  broadest  applica- 
tion, and,  it  is  believed,  has  in  no  case  been  declared  un- 
constitutional, although  often  contested.1  So  far  as  these 
statutes  prohibit  the  sale  of  liquor  to  persons  who,  from 
their  known  weakness  of  character,  may  be  expected  to 
make  an  improper  use  of  it  to  their  own  harm  and  the 
injury  of  others,  and  subject  the  dealer,  who  sells  liquor  to 
these  classes  of  persons,  to  an  action  for  the  damages  that 
third  persons  may  have  sustained  from  their  drunken  antics, 
it  cannot  be  doubted  that  the  statutes  are  constitutional. 
These  persons,  who  are  laboring  under  some  mental  or  other 
infirmity  which  renders  them  unable  to  take  care  of  them- 
selves, can  very  properly  be  placed  under  the  guardianship 
of  the  State,  if  not  in  all  cases  for  their  own  benefit,  at 
least  for  the  protection  of  the  public ;  and  where  a  dealer 
in  intoxicating  liquors  sells  to  such  an  one,  in  violation  of 
the  statutes,  he  does  a  wrongful  thing,  an  act  prohibited  by 
a  constitutional  law,  and  he  may  therefore  be  held  respon- 
sible for  every  damage  flowing  from  his  wrongful  act,  which 
might  reasonably  have  been  anticipated.  But  when  the 
statutes  go  farther  and  make  the  dealer  responsible  for 
every  wrongful  act  committed  by  any  and  every  person 

i  Roth  v.  Eppy,  80  111.  283 ;  Wilkerson  v.  Rust,  57  Ind.  172;  Fountains. 
Draper,  49  111.  441;  Church  v.  Higham,  44  Iowa,  482;  Goodenough  v. 
McGrew,  44  Iowa,  670;  Gaussby  v.  Perkins,  30  Mich.  492;  Badore  v. 
Newton,  54  N.  H.  117;  Baker  v.  Pope,  2  Hun,  556;  Quain  v.  Russell,  12 
Hun,  376;  Bertholf  v.  O'Reilly,  74  N.  Y.  515;  Baker  v.  Beckwith,  29 
Ohio  St.  314;  State  v.  Ludington,  33  Wis.  107;  Whitman  v.  Devere,  33 
Wis.  70. 

§  125 


PROHIBITION    OF   THE   LIQUOR   TRADE.  547 

while  in  a  state  of  intoxication,  whose  intoxication  was 
caused  by  the  liquor  which  the  dealer  had  sold,  whether  the 
dealer  knew  of  his  aptitude  to  intoxication  or  not,  they 
can  only  be  justified  on  the  principle  that  the  prosecution 
of  the  liquor  trade  is  unlawful  in  itself,  and  the  constitu- 
tionality of  such  laws  must  depend  upon  the  constitution- 
ality of  laws  for  the  prohibition  of  the  liquor  trade  in 
general.  For  no  one  can  be  held  responsible  for  damage, 
flowing  consequentially  from  an  act  of  his,  unless  that  act 
is  unlawful  in  itself,  or  he  has  done  it  in  an  unlawful 
manner.  If  the  sale  of  liquor  is  a  lawful  occupation  he  can 
not  be  held  for  a  damage  that  is  not  the  result  of  his  failure 
to  conduct  the  business  in  a  lawful  manner,  and  he  cannot 
be  said  to  have  conducted  a  lawful  business  in  an  unlawful 
manner,  when  he  sells  liquor  to  one  who  may  not  reasona- 
bly be  expected  to  become  intoxicated. 

Is  then  the  absolute  prohibition  of  the  liquor  trade  a  con- 
stitutional exercise  of  legislative  authority  under  the  ordi- 
nary constitutional  limitations?  It  may  be  stated  that  the 
decisions  of  the  courts,  in  different  parts  of  the  country, 
haye  very  generally  sustained  laws  for  the  prohibition  of 
the  sale  of  intoxicating  liquors,  in  any  manner,  form  or  bulk 
whatever,  and  on  the  ground  that  the  trade  works  an  injury 
to  society,  and  may,  therefore,  be  prohibited.1 

1  Metropolitan  Board  Excise  v.  Barrie,  34  N.  Y.  657;  Wynehamer  t>. 
People,  3  Kern,  435;  Warren  v.  Mayor,  etc.,  Charleston,  2  Gray,  98; 
Fisber  v.  McGirr,  1  Gray,  26;  Jones  v.  People,  14  111.  196;  Goddard  v. 
Jacksonville,  15  111.  588 ;  People  o.  Hawley,  3  Gibbs,  330 ;  Preston  v.  Drew, 
33  Me.  559;  State  v.  Noyes,  30  N.  H.  279;  State  v.  Snow,  3  R.  I.  68;  State 
v.  Peckham,  76.  293;  State  v.  Paul,  5  R.  1. 185;  State  v.  Wheeler,  25  Conn. 
290;  Lincoln  v.  Smith,  27  Vt.  328;  Sante  v.  State,  2  Clarke  (Iowa),  165; 
Prohibitory  Am.  Cases,  25  Kan.  751  (37  Am.  Rep.  284) ;  Bartemeyer  v 
Iowa,  18  Wall.  729 ;  State  v.  Mugler,  29  Kan.  252  (44  Am.  Rep.  634 ) ;  Perdue 
v.  Ellis,  18  Ga.  586;  Austin  v.  State,  10  Mo.  591 ;  State  v.  Searcy,  20  Mo. 
489;  Our  House  v.  State,  4  Greene  (Iowa),  172;  Zumhoff  v.  State,  76. 
526;  State  v.  Donehey,  8  Iowa,  396;  State  ».  Carney,  20  Iowa,  82;  State 
v.  Baughman,/6.  497;  State  v.  Gurney,  37  Me.  156;  State  v.  Burgoyne,  7 
Lea,  173  (40  Am.  Rep.  60);  State  v.  Prescott,  27  Vt.  194;  Lincoln  v. 

§    125 


548  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

The  citations  and  quotations  may  be  continued  without 
end,  but  the  invariable  argument  is  that  the  liquor  trade 
has,  following  in  its  train,  certain  evils,  which  would  not 
exist,  if  the  trade  were  prohibited  altogether ;  conse- 
quently, the  trade  may  rightfully  be  prohibited.  If  the 

Smith,  27  Vt.  328;  State  v.  Brennan's  Liquors,  25  Conn.  278;  State  v, 
Common  Pleas,  36 N.  J.  72  (13  Am.  Rep.  422)  ;  Tanner  v.  Village  of  Alli- 
ance, 29  Fed.  Rep.  196,  note;  Koester  v.  State,  36  Kan.  27,  prohibit 
sale  by  all  but  druggists  for  medical,  scientific  and  mechanical  pur- 
poses. Local  option  laws  are  constitutional.  Ex  parte  Kennedy  (Tex.), 
3  S.  W.  114.  "The  measures  best  calculated  to  prevent  those  evils 
and  preserve  a  healthy  tone  of  morals  in  the  community,  are  sub- 
jects proper  for  the  consideration  of  the  legislature.  Courts  of 
justice  have  nothing  to  do  with  them,  other  than  to  discharge 
their  legitimate  duties  in  carrying  into  execution  such  laws  as  the  legisla- 
ture may  establish,  unless,  indeed,  they  find  that  the  legislature  in  mak- 
ing a  particular  law,  has  disregarded  the  restraints  imposed  upon  it  by 
the  constitution  of  this  State,  or  the  United  States."  State  v.  Brennan, 
25  Conn.  278.  "  There  is,  however,  no  occasion  to  pursue  this  topic. 
The  law  in  question  is,  in  our  opinion,  obnoxious  to  no  objection,  which 
could  be  derived  from  the  establishment  of  the  doctrine  advanced  by  the 
defendant.  It  is  not  different  in  its  character,  although  it  may  be  more 
stringent  in  some  of  its  provisions  from  those  numerous  laws,  which 
have  been  passed  in  almost  all  civilized  communities  and  in  ours  from  the 
earliest  settlement  of  our  State,  regulating  the  traffic  in  spirituous 
liquors,  and  which  are  based  on  the  power  possessed  by  every  sovereign 
State,  to  provide  by  law,  as  it  shall  deem  fit  for  the  health,  morals,  peace 
and  general  welfare  of  the  State,  and  which,  whatever  may  have  been 
thought  of  their  expediency,  have  been  invariably  sustained  as  being 
within  the  competency  of  the  legislature  to  enact."  State  v.  Wheeler, 
Ib.  "The  weight  of  authority  is  overwhelming  that  no  such  immunity 
has  heretofore  existed,  as  would  prevent  State  legislatures  from  regu  - 
lating  and  even  prohibiting  the  traffic  in  intoxicating  drinks  with  a  soli- 
tary exception.  That  exception  is  the  case  of  a  law  operating  so  rigidly 
upon  property  in  existence  at  the  time  of  its  passage,  absolutely  prohib- 
iting its  sale,  as  to  amount  to  depriving  the  owner  of  his  property." 
Justice  Miller  in  Bartemeyer  v.  Iowa,  18  Wall.  129.  "  There  certainly  are 
provisions  in  all  our  State  constitutions,  which  will  not  permit  legisla- 
tive bodies  wantonly  to  interfere  with  or  destroy  many  of  the  natural  or 
constitutional  rights  of  the  citizens.  Of  this  class  are  those  provisions 
which  secure  the  freedom  of  the  press  and  of  speech,  and  the  freedom  of 
debate.  But  we  are  not  aware  that  there  is  any  provision  in  our  consti- 
tution which  would  prevent  the  legislature  from  prohibiting  dram  selling 
entirely."  Napton,  J.,  in  Austin  v.  State,  10  Mo.  591. 
§  125 


PROHIBITION   OF  THE   LIQUOR  TRADE.  549 

necessary  consequence  of  the  sale  of  liquor  was  the  intoxi- 
cation of  the  purchaser,  because  the  liquor  could  not  be 
used  without  this  or  other  injury  to  the  person  using  it  and 
to  others,  then  the  trade  may  be  prohibited  in  accordance 
with  the  principles,  which  have  been  established  in  preced- 
ing sections  of  this  chapter,  in  application  to  other  employ- 
ments. In  such  a  case,  the  trade  would  be  essentially 
injurious  to  the  public.  But  it  does  not  necessarily  follow 
that  the  sale  of  the  liquor  will  cause  the  intoxication  of 
the  purchaser.  The  number  of  those  who  are  likely  to 
become  intoxicated  by  the  liquor  they  purchase  is  very 
small,  in  comparison  with  the  thousands  who  buy  and  use 
it  in  moderation,  without  ever  approaching  the  state  of 
intoxication.  We  cannot  say,  therefore,  that  the  sale  of 
liquor  necessarily  causes  intoxication.  On  the  contrary, 
the  facts  establish  the  truth  of  the  statement  that  the  cases, 
in  which  the  sale  of  liquor  is  followed  by  intoxication, 
constitute  the  exception  to  the  general  rule.  The  liquor 
dealer  may,  and  probably  in  the  majority  of  cases  does, 
become  responsible  for  the  intoxication  that  follows  a  sale 
in  these  exceptional  cases,  by  knowingly  selling  liquor  to 
one/  who  is  intoxicated  at  the  time,  or  is  likely  to  become 
intoxicated,  and  he  can  undoubtedly  be  punished  for  such 
a  wrong  against  society;  but  the  main  and  proximate  cause 
of  these  cases  of  intoxication  is  the  weakness  of  the  pur- 
chaser, against  which  no  law  probably  can  furnish  for  him 
any  effective  protection. 

But  it  is  often  urged  as  a  justification  of  prohibition  that 
even  a  moderate  use  of  intoxicating  liquor  is  injurious  to 
the  health.  A  great  many  people  believe  this  to  bo  true, 
and  possibly  it  is.  But  the  majority  of  people  of  the 
present  generation  think  differently.  Thousands  main- 
tain that  it  is  a  harmless  indulgence,  and  as  many  more 
declare  it  to  be  positively  beneficial.  Those  who  are  op- 
posed to  the  use  of  intoxicating  liquors,  except  for 
medicinal  purposes,  are  convinced  that  these  people  are 


550  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

wrong ;  but  they  are  equally  entitled  to  their  own  opinions, 
and  it  would  be  just  as  much  an  act  of  tyranny  to  compel 
them  to  abandon  their  ideas  and  practices,  in  conformity 
with  the  total  abstinent's  views  of  what  is  good  for  them, 
as  it  would  be  to  pass  a  law  prohibiting  the  eating  of 
hot  bread,  because  the  majority  of  the  people  believe  it 
to  be  injurious  to  the  health.  It  is  true  that  a  man  may 
be  prohibited  from  doing  that  which  will  work  an  injury  to 
his  offspring  by  the  inheritance  of  diseases  caused  by  the 
prohibited  practice.  While  it  is  probably  true  that  intoxi- 
cating liquor,  like  any  other  stimulant,  will  produce  a  more 
or  less  lasting  effect  upon  the  constitution  of  the  person 
addicted  to  its  use,  it  is  by  no  means  a  demonstrated  fact 
that  its  use  is  the  cause  of  any  constitutional  disease. 
Whatever  injury  can  be  attributed  to  the  moderate  use  of 
liquor,  so  far  at  least  as  our  present  knowledge  extends,  is 
functional  and  not  constitutional.  If  these  reasons  be  well 
founded,  then  the  liquor  trade  is  not  necessarily  injurious, 
in  a  legal  sense,  to  the  public;  and  where  injury  does  result, 
it  is  either  caused  by  the  shortcomings  of  the  purchaser, 
without  any  participation  in  the  wrong  by  the  seller,  as 
where  he  does  not  know,  and  cannot  be  supposed  to  know, 
that  intoxication  will  very  likely  follow  the  sale;  or  the 
responsibility  may  be  laid  at  the  door  of  the  seller,  when 
he  knowingly  sells  to  one  who  is  likely  to  make  an  improper 
use  of  it.  The  seller  may  in  the  latter  case  be  punished,  and 
his  right  to  pursue  the  trade  thereafter  may  be  taken  away 
altogether,  as  a  penalty  for  his  violation  of  the  law  in  this 
regard.  But  the  liquor  trade  can  not,  for  these  reasons,  be 
prohibited  altogether,  if  it  be  true  that  no  trade  can  be  pro- 
hibited entirely,  unless  its  prosecution  is  essentially  and 
necessarily  injurious  to  the  public.  Even  the  prohibition  of 
saloons,  that  is, where  intoxicating  liquor  is  sold  and  served, to 
be  drunk  on  the  premises,  cannot  be  j  ustified  on  these  grounds.1 

1  As  stated  already,  the  prohibition  of  the  sale  of  intoxicating  liquor 
§   125 


PROHIBITION    OF   THE    LIQUOR   TRADE.  551 

It  is  quite  common  for  the  legislature  to  pass  laws  pro- 
hibiting the  sale  of  intoxicating  liquors  in  the  neighborhood 
of  schools,  colleges,  and  lunatic  asylums,  and  these  laws 
have  uniformly  been  sustained  as  constitutional,  unless  in 
some  of  the  States  they  have  come  under  the  constitutional 
prohibition  for  being  special  laws,  the  right  to  enact  which 
is  taken  away  from  the  legislature  by  some  of  the  consti- 
tutions.1 Surely,  if  in  any  case  prohibition  laws  can  be  sus- 

has  seldom  been  declared  to  be  unconstitutional,  but  in  the  following 
opinion  from  the  Supreme  Court  of  Indiana,  which  has,  however,  been  sub- 
sequently overruled,  or  at  least  departed  from,  a  law  which  prohibited  the 
manufacture  of  spirituous  liquor  was  declared  to  be  unconstitutional :  — 

"  The  court  knows,  as  matter  of  general  knowledge,  and  is  capable  of 
Judicially  asserting  the  fact,  that  the  use  of  beer,  etc.,  as  a  beverage,  is  not 
necessarily  hurtful,  any  more  than  the  use  of  lemonade  or  ice  cream.  It  is 
the  abuse,  and  not  the  use,  of  all  these  beverages  that  is  hurtful.  But  the 
legislature  enacted  the  law  in  question  upon  the  assumption  that  the 
manufacture  and  sale  of  beer,  etc.,  were  necessarily  destructive  to  the 
community;  and  in  acting  upon  that  assumption,  in  our  own  judgment, 
it  has  invaded  unwarrantably  the  right  to  private  property  and  its  use  as 
a  beverage  and  article  of  traffic. 

"  What  harm,  we  ask,  does  the  mere  manufacture  or  sale  or  temperate 
use  of  beer  do  to  any  one?  And  the  manufacturer  or  seller  does  not  neces- 
sarily know  what  use  is  to  be  made  by  the  purchaser  of  the  article.  It  may 
be/a  proper  one.  And  if  an  improper  one,  it  is  not  the  fault  of  the  manu- 
facturer or  seller,  but  it  is  thus  appropriated  by  the  voluntary  act  of  an- 
other person,  and  by  his  own  wrong.  And  will  the  general  principle  be 
asserted  that  to  prevent  the  abuse  of  useful  things,  the  government  shall 
assume  the  dispensation  of  them  to  all  the  citizens  —  put  all  under  guar- 
dianship? Fire-arms  and  gunpowder  are  not  manufactured  and  sold  to 
s-hoot  innocent  persons  with,  but  are  often  so  misapplied.  Axes  are  not 
made  and  sold  to  break  heads  with,  but  are  often  used  for  that  par- 
pose.  *  *  *  Yet  who,  for  all  this,  has  ever  contended  that  the  manu- 
facture and  sale  of  these  articles  should  be  prohibited  as  being  nuisances, 
or  be  monopolized  by  government?  We  repeat,  the  manufacture  and 
sale  of  liquors  are  not  necessarily  hurtful,  and  this  court  has  the  rishtto 
judicially  inquire  into  and  act  upon  the  validity  of  the  law  in  question." 
Beebe  v.  State,  6  Ind.  501. 

1  Dorman  v.  State,  34  Ala.  216;  Boyd  v.  Bryant,  35  Ark.  69  (37  Am. 
Rep.  6)  ;  Trammell  v.  Bradley,  37  Ark.  356;  Ex  parte  McClain,  61  Cal.  436 
(44  Am.  Rep.  554);  Bronson  ».  Oberlin,  41  Ohio  St.  476  (52  Am.  Rep. 
90).  So,  also,  it  has  been  held  constitutional  to  prohibit  sale  of  liquor 
within  a  certain  distance  of  fair  grounds.  Heck  v.  State,  44  Ohio  St.  686. 

§  125 


552  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

tained  on  principle,  their  enactment  would  find  ample  justi- 
fication in  the  removal  of  temptation  to  drink  from  those 
who,  on  account  of  their  infancy  or  mental  deficiencies,  are 
not  as  able  to  maintain  an  effective  resistance  without  this 
protection.  But  if  the  principles  heretofore  developed  be 
at  all  reliable,  as  a  guide  in  search  of  the  constitutional 
limitations  upon  the  police  control  of  trades  and  employ- 
ments, these  special  prohibitory  laws  are  subject  to  the 
same  constitutional  objection,  that  the  trade  which  they  pro- 
hibit is  not  essentially  and  necessarily  harmful  to  society, 
even  under  the  peculiar  circumstances  which  furnish  a 
special  reason  for  the  enactment  of  the  law. 

It  has  been  stated  that  the  reasons  usually  assigned  for 
the  enactment  of  prohibitory  laws,  viz. :  the  prevention  of 
drunkenness,  will  not  satisfy  the  constitutional  require- 
ments even  in  the  prohibition  of  drinking  saloons,  although 
most  of  the  drunkenness  from  which  the  State  suffers  is 
caused  by  the  existence  of  taverns  or  saloons,  where  liquor 
is  sold  to  be  drunk  on  the  premises.  For  it  would  be  mani- 
festly untrue  to  assert  that  every  frequenter  of  a  saloon 
became  intoxicated,  and  during  intoxication  did  more  or 
less  damage  to  the  public,  or  to  third  persons:  conse- 
quently the  sale  of  liquor  in  a  saloon  does  not  necessarily 
bring  about  the  intoxication  of  the  buyer  or  of  his  friends. 
But  there  is  another,  and  an  all-sufficient,  reason  for  the 
prohibition  of  drinking  saloons,  if  the  legislature  should 
deem  it  expedient  to  prohibit  them.  It  is  that  they  con- 
stitute the  places  of  meeting  for  all  the  more  or  less  dis- 
reputable and  dangerous  classes  of  the  community,  and 
breaches  of  the  peace  of  a  more  or  less  serious  character 
almost  invariably  occur  in  bar-rooms.  It  is  true  that  there 
are  many  comparatively  quiet  saloons,  where  men  of  good 
social  standing  resort,  and  which  are  to  be  distinguished 
from  the  low  groggeries  where  the  vicious  and  the  criminal 
classes  congregate ;  but  the  keeping  of  a  drinking  saloon 
cannot  be  conducted  so  that  public  disorders  cannot  possi- 
§  125 


PROHIBITION   OF   THE   LIQUOR   TRADE.  553 

bly  occur,  and  some  of  the  most  distressing  breaches  of  the 
peace,  resulting  in  the  death  of  one  or  more,  have  occurred 
ID  this  better  class  of  saloons.  The  suppression  and  con- 
trol of  the  public  disorders  caused  by  the  keeping  of  saloons 
constitute  a  heavy  burden  upon  the  taxpayer,  and  the  cause 
of  them  may  be  removed  by  a  prohibitory  law,  or  restrained 
and  restricted  in  number  by  the  imposition  of  a  high  license, 
according  as  it  may  seem  best  to  the  law-making  power. 

As  a  matter  of  course,  if  the  absolute  prohibition  of 
drinking  saloons  is  constitutional,  it  would  be  lawful  to 
subject  them  to  more  or  less  strict  police  regulations, 
where  the  regulations  have  for  their  reasonable  object  the 
prevention  of  some  special  evil  which  the  prosecution  of  the 
trade  threatens  to  the  public.  Thus  it  has  been  held  rea- 
sonable to  compel  the  closing  of  saloons  on  Sunday,1  not 
only  because  the  pursuit  of  the  business  would  be  a  viola- 
tion of  the  ordinary  Sunday  laws,2  but  also  because  there 
i8  increased  danger  on  that  day  of  breaches  of  the  peace  in 
bar-rooms,  on  account  of  the  idleness  of  those  persons  who 
are  most  likely  to  frequent  such  places.  It  has  also  been 
held  to  be  reasonable,  for  similar  reasons,  to  prohibit  the 
sale  of  liquors  on  primary  and  other  election  days ; 8  on 
cWrt,  show  and  fair  days;4  to  compel  the  saloons  to  be 
closed  at  a  certain  hour  in  the  night;  6  and  in  one  case  it 
was  maintained  to  be  lawful  for  the  legislature  to  author- 
ize the  Board  of  Police  Commissioners  to  order  all  saloons 

1  Hudson  v.  Geary,  4  R.  I.  485;  Gabel  v.  Houston,  29  Tex.  335;  State 
V.  Ludwig,  21  Minn.  202. 

2  As  to  which  see  ante,  §  68. 

8  State  v.  Christman,  67  Ind.  328. 

«  Grills  v.  Jonesboro,  8  Baxt.  247. 

*  Stater.  Welch,  36  Conn.  215;  State  v.  Freeman,  38  N.  H.  426;  Smith 
v.  Knoxville,3  Head,  245;  Maxwell  v.  Jonesboro,  11  Heisk.  257;  Baldwin 
v.  Chicago,  68  111.  418;  Plattevillew.  Bell,  43  Wis.  488.  In  Ward  v.  Green- 
ville, 1  Baxt.  228  (35  Am.  Rep.  700),  It  was  held  to  be  unreasonable  to 
compel  saloons  to  be  closed  between  6  p.  ra.  and  6  a.  m.  But  a  statute 
prohibiting  sale  of  liquors  between  11  p.  m.  and  6  a.  m.  was  held  to  be 
constitutional.  Hedderich  o.  State,  101  Ind.  564  (51  Am.  Rep.  768.) 

§  125 


554  REGULATION    OF    TRADES    AND   OCCUPATIONS. 

to  be  closed,  "  temporarily,  "  whenever  in  their  judgment 
the  public  peace  required  it.1  It  has  also  been  declared  to 
^e  reasonable  to  prohibit  the  erection  of  screens  and  shut- 
ters before  places  in  which  liquors  are  sold.2 

This,  therefore,  is  the  conclusion  reached  after  a  careful 
consideration  of  all  the  constitutional  reasons  for  and 
against  the  prohibition  of  the  liquor  trade :  the  prohibi- 
tion of  the  manufacture  and  sale  of  spirituous  and  intoxicat- 
ing liquors  is  unconstitutional,  unless  it  is  confined  to  the 
prohibition  of  drinking  saloons,  and  the  prohibition  of  the 
sale  of  liquor  to  minors,  lunatics,  confirmed  drunkards, 
and  persons  in  a  state  of  intoxication.  As  has  already 
been  explained,  there  is  an  almost  unbroken  array  of  judi- 
cial opinions  agaiust  this  position,  and  there  is  not  any 
reasonable  likelihood  that  there  will  be  any  immediate 
revulsion  in  the  opinions  of  the  courts.  But  it  is  the  duty 
of  a  constitutional  jurist  to  press  his  views  of  constitutional 
law  upon  the  attention  of  the  legal  world,  even  though  they 
place  him  in  opposition  to  the  current  of  authority. 

§  126.  Police  control  of  employments  in  respect  to 
locality.3 — Another  more  or  less  common  mode  of  police 
regulation  of  employments  is  the  determination  of  the 
localities,  in  which  the  trade  will  be  allowed.  Very  many 
trades  are  beneficial  to  society  in  general,  and  it  would  be 
unconstitutional  to  prohibit  them  altogether  ;  and  yet  they 
may  be  subjected  to  whatever  reasonable  regulations  may 
be  needed  to  avert  or  prevent  some  special  danger,  which 
is  threatened  by  the  prosecution  of  them.  Very  many 
instances  of  such  regulations  have  been  given  in  preceding 
sections  of  this  chapter.  A  trade  may  be  highly  dangerous 

1  State  v.  Strauss,  49Md.  288. 

2  Commonwealths.  Costello,  133  Mass.  192;  Commonwealth  v.  Casey, 
134  Mass.  194 ;  Shultz  v.  Cambridge,  88  Ohio  St.  659. 

8  See  post,  §§  147,  148,  in  respect  to  the  confinement  of  objectionable 
trades  to  certain  localities. 
§  126 


POLICE  CONTROL  OF   EMPLOYMENTS    AS  TO  LOCALITY.       555 

or  offensive  to  the  people,  when  prosecuted  in  one  locality, 
while  the  danger  or  offensiveness  may  be  dissipated" 
altogether  or  considerably  abated,  if  it  is  carried  on  in  a 
different  community.  Machine  shops  and  the  cotton  trade 
may  be  cited  as  a  good  example  of  trades,  which  are  more 
dangerous  in  one  locality  than  in  some  other;  while  a  soap 
factory  or  a  tannery  may  be  referred  to  as  illustrating  cases, 
in  which  offensiveness  would  constitute  a  serious  objection 
to  their  prosecution  in  the  residential  portion  of  a  city.1 
It  would  not  constitute  any  unreasonable  interference  with 
the  right  to  pursue  without  restraint  any  lawful  trade  or 
employment,  if  the  legislative  authority  should  require  the 
prosecution  of  such  trades  and  occupations  within  a  certain 
area  of  a  populous  city,  and  prohibit  them  outside  of  such 
area.  This  power  has  been  often  exercised,  and  but  rarely 
questioned.  It  has  been  held  reasonable  to  prohibit  the 
keeping  of  slaughter-houses  in  certain  parts  of  the  city,2 
and  to  exclude  hacks  from  certain  streets.3 

Other  cases  of  justifiable  limitation  of  certain  trades  to 
a  particular  designated  locality  are  suggested  by  some  of 
the  cases.  It  has  thus  been  held  to  be  constitutional  to 
confine  dairies  within  a  certain  territory;  4  and  to  prohibit 
liquor  saloons  in  residential  portions  of  a  city;5  and  the 
sale  of  cigarettes  within  two  hundred  feet  of  a  school 
house.'  But  the  prohibition  as  to  locality  must  be  reason- 
able, in  order  that  it  may  not  offend  the  constitutional 

1  People  v.  Rosenberg,  67  Hun,  52. 

2  Cronin  ».  People,  82  N.  Y.  318  (37  Am.  Rep.  564) ;  Metropolitan  Board 
of  Health  v.  Heister,  37  N.  Y.  661;  Milwaukee  v.  Gross,  21  Wis.  241 ; 
Villavaso  v.  Barthet,  39  La.  Ann.  247;  Belling  v.  City  of  Evansville,  144 
Ind.  644;  City  of  Portland  v.  Meyer,  32  Ores.  368  (52  P.  21). 

8  Commonwealth  v.  Stodder,  2  Gush.  561. 

4  In  re  Llnahan,  72  Cal.  114. 

6  Shea  v.  Muncie,  145  Ind.  14.  The  requirement  that  the  location  of  a 
saloon  on  a  city  block  must  depend  upon  the  consent  of  a  certain  propor- 
tion of  the  owners  of  property  on  the  block,  is  so  common  that  It  did 
not  at  first  appear  to  be  necessary  to  refer  to  it. 

6  Gundlinx  v.  City  of  Chicago,  176  111.  340. 

§  120 


556  REGULATION    OF   TRADES    AND   OCCUPATIONS. 

limitations.  If  the  area,  in  which  the  prosecution  of  a 
useful  trade  is  prohibited,  is  so  extensive  that  it  amounts 
to  a  practical  prohibition  of  the  trade,  the  regulation  will  be 
unconstitutional.  Thus  it  has  been  held  to  be  unreasonable 
to  prohibit  the  establishment  of  a  steam  engine  in  the  city.1 

The  nature  of  the  business  mu&t  also  be  such  as  to  justify 
restriction  as  to  locality.  If  the  business  is  of  an  inoffen- 
sive character,  and  its  prosecution  does  not  involve  the 
creation  of  a  nuisance,  a  law  is  unconstitutional  which 
undertakes  to  confine  it  to  a  certain  locality.  For  example, 
one  of  the  manifestations  of  popular  hostility  to  the  Chinese 
took  the  form  in  California  of  ordinances,  which  limited 
laundries  to  certain  blocks  and  sections  of  the  town  or  city. 
The  Supreme  Court  of  California  joined  with  the  United 
States  court,  in  pronouncing  such  ordinances  to  be  an 
unconstitutional  interference  with  personal  liberty.2 

In  Missouri,  a  State  law  which  authorized  cities  possess- 
ing a  certain  population  to  prohibit  the  establishment  and 
maintenance  of  all  kinds  of  business  on  a  boulevard,  or 
other  particular  street  or  avenue,  was  an  unconstitutional 
taking  of  property,  inasmuch  as  it  denied  to  the  owner  a 
lawful  use  of  the  property.3 

The  prohibition  of  certain  kinds  of  business  in  certain 
localities  and  in  certain  kinds  of  houses,  will  be  justified,  if 
it  can  be  established  to  be  a  reasonable  regulation  for  the 
preservation  of  the  health  of  the  inhabitants  of  the  locality, 
or  of  the  inmates  of  the  house.  But  that  fact  must  be  judi- 
cially established ;  and  the  legislative  determination,  that 
the  trade  in  question  is  injurious  to  health,  if  conducted  in 
the  prohibited  localities  or  houses,  is  not  conclusive.  Thus 
a  law  has  been  declared  to  be  unconstitutional,  which  pro- 
hibited the  manufacture  of  cigars  in  tenement  houses, 
because  the  New  York  Court  of  Appeals  did  not  agree 

1  Baltimore  v.  Kedecke,  49  Md.  217  (33  Am.  Rep.  239). 

2  Exparte  Sing  Lee,  96  Cal.  354;  In  re  Hong  Wah,  82  Fed.  623. 
8  City  of  St.  Louis  v.  Dorr,  145  Mo.  466;  41  S.  W.  1094. 

§    12 


POLICE  CONTROL  OF  EMPLOYMENTS    AS  TO  LOCALITY.       557 

with  the  legislative  determination,  that  the  public  health 
or  comfort  was  endangered  by  the  prosecution  of  the  trade 
in  such  places.1 

Not  only  has  the  legislature  exercised  the  power  of 
confining  the  prosecution  of  certain  trades  to  certain 
localities,  but  it  has  very  often,  particularly  in 
respect  to  the  vending  of  fresh  meat  and  vegetables,  pro- 
hibited the  plying  of  the  trade  in  any  other  place  than  the 
market,  which  is  established  and  regulated  by  the  govern- 
ment. This  regulation  is  very  common  in  all  parts  of  this 
country,  and  has  frequently  been  the  source  of  litigation; 
but  it  has  generally  been  held  to  be  reasonable.2  In  the 
case  of  New  Orleans  v.  Stafford,3  the  Supreme  Court  of 
Louisiana  presents  forcibly  the  reasons  which  justify  this 
police  regulation:  — 

«'  Has  the  legislature  the  power  to  make  the  regulation 
which  it  made  by  this  act  of  the  twenty-sixth  of  February, 
1874,  declaring  that  private  markets  shall  not  be  es- 
tablished, continued  or  kept  open  within  twelve  squares  of 
a  public  market?  This  question,  we  think,  must  be  an- 
swered in  the  affirmative.  And  the  power  arises  from  the 
nature  of  things,  and  what  is  termed  a  police  power.  It 
springs  from  the  great  principle,  solus  populi  suprema  est 
lex.  There  is  in  the  defendant's  case  no  room  for  any 
Wll  grounded  complaint  of  the  violation  of  a  vested  pri- 
vate right,  for  the  privilege,  if  he  really  possessed  it,  of 
keeping  a  private  market,  was  acquired  subordinately  to 
the  right  existing  in  the  sovereign  to  exercise  the  police 

1  Matter  of  Jacobs,  98  N.  Y.  98. 

2  Buffalo  v.  Webster,  10  Wend.  99;  Bush  v.  Seabury,  8  Johns.  418; 
Winnsborow.  Smart,  11  Rich.  L.  051;  Bowling  Green  v.  Carson,  10  Bush, 
64;  New  Orleans  v.  Stafford,  27  La.  Ann.  417  (21  Am.  Rep.  563);  Wart- 
man  v.  Philadelphia,  33  Pa.  St.  202;  St.  Louis  v.  Weber,  44  Mo.  647; 
Ash  v.  People,  11  Mich.  347;  LeClaire  v.  Davenport,  13  Iowa,  210.     But 
see  contra  Bethune  v.  Hayes,  28  Ga.  560;  Caldwell  ».  Alton,  34  111.  416; 
Bloomington  v.  Wahl,  46  111.  489. 

»  27  La.  Ann.  417  (.21  Am.  liep.  563.) 

§  126 


558  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

power  to  regulate  the  peace  and  good  order  of  the  city, 
and  to  provide  for  and  maintain  its  cleanliness  and  sa- 
lubrity. By  way  of  illustrating  this  necessarily  existing 
power  to  regulate  the  number,  location  and  management 
of  markets,  take  the  city  of  New  Orleans,  in  a  warm 
climate,  located  in  a  low  district  of  country,  surrounded 
by  marshes  and  swamps,  which  in  the  hot  season  under 
favorable  conditions  envelops  its  large  population  in  a 
malarious  atmosphere.  Under  such  circumstances  the 
danger  of  epidemics  becomes  imminent.  It  behooves 
the  city  authorities  at  such  periods  to  be  on  the  alert 
to  obviate  local  causes  of  disease  within  the  limits  of 
the  city.  Among  such  causes  the  decay  of  animal  and 
vegetable  matter  is  a  prominent  one.  The  markets  there- 
fore must  on  that  account  be  strictly  attended  to  and 
such  measures  adopted  in  regard  to  them  as  in  the  judg- 
ment of  the  proper  authorities,  the  public  health  may 
require."  *  *  *  "  We  presume  it  will  not  be  denied 
that  under  circumstances  of  peril  and  emergency  the  law- 
maker would  have  the  right  to  abolish  or  suspend  an  occu- 
pation imperiling  the  public  safety.  This  power  is  inherent 
in  him.  He  may  exercise  it  prospectively  for  prevention 
as  well  as  pro  rata,  for  immediate  effect.  It  is  within  his 
discretion  when  to  exercise  this  power,  and  persons,  under 
license  to  pursue  such  occupations  as  may  in  the  public 
need  and  interest  be  affected  by  the  exercise  of  the  police 
power,  embark  in  those  occupations  subject  to  the  disad- 
vantages which  may  result  from  a  legal  exercise  of  that 
power."1  On  the  same  general  principles,  it  has  been 

i  "  The  necessity  of  a  public  market,  where  the  producers  and  con- 
sumers of  fresh  provisions  can  be  brought  together  at  stated  times  for 
the  purchase  and  sale  of  those  commodities  is  very  apparent.  There  is 
nothing  which  more  imperatively  requires  the  constant  supervision  of 
some  authority  which  can  regulate  and  control  it.  Such  authority  in  this 
country  is  seldom  if  ever  vested  in  individuals.  It  can  never  be  so  well 
placed,  as  where  it  is  put  into  the  hands  of  the  corporate  officers  who 
represent  the  people  immediately  interested.  A  municipal  corporation, 
§  126 


POLICE  CONTROL  OF  EMPLOYMENTS  AS  TO    LOCALITY.      559 


held    to    be    constitutional  to  prohibit  the  keeping  of    a 
private  market  within  six  squares  of  a  public  market.1 

The  same  principles  would  govern  in  their  application 
to  cases  of  a  similar  character.  It  cannot  be  doubted,  for 
example,  that  the  State  may  directly,  or  through  a  munici- 
pal corporation,  establish  a  public  slaughter-house,  where 
butchers  must  bring  their  cattle  to  be  slaughtered,  and 
prohibit  the  slaughtering  of  cattle  elsewhere.  Compelling 
persons  to  pursue  such  callings  in  public  places,  estab- 
lished and  regulated  by  the  State,  is  looked  upon  as  rea- 
sonable. But  when  the  State,  instead  of  establishing  a 
public  market  or  slaughter-house,  and  placing  it  under 
the  management  and  control  of  State  officials,  grants  to  a 
private  individual  or  corporation  the  exclusive  privilege 
of  maintaining  a  public  market  or  slaughter-house,  serious 
objections  are  raised  to  the  constitutionality  of  the  legis- 

comprising  a  town  of  any  considerable  magnitude,  without  a  public 
market  subject  to  the  regulation  of  its  own  local  authorities,  would  be 
an  anomaly  which  at  present  has  no  existence  among  us.  The  State 
might  undoubtedly  withhold  from  a  town  or  city  the  right  to  regulate  its 
markets,  but  to  do  so  would  be  an  act  of  tyranny,  and  a  gross  violation 
of  the  principle  universally  conceded  to  be  just,  that  every  community, 
whether  large  or  small,  should  be  permitted  to  control,  in  their  own  way, 
all  those  things  which  concern  nobody  but  themselves.  The  daily  sup- 
ply of  food  to  the  people  of  a  city  is  emphatically  their  own  affair.  It  is 
true  that  the  persons  who  bring  provisions  to  the  market  have  also  a  sort 
of,  interest  in  it,  but  no  such  an  interest  as  entitles  them  to  a  voice  in 
its  regulation.  The  laws  of  a  market  (I  am  now  using  the  word  in  its 
larger  sense)  are  always  made  by  the  persons  who  reside  at  the  place,  and 
that  whether  they  be  buyers  or  sellers.  It  is,  therefore,  the  common  law 
of  Pennsylvania,  that  every  municipal  corporation  which  has  powur  to 
make  by-laws  and  establish  ordinances  to  promote  the  general  welfare 
and  preserve  the  peace  of  a  town  or  city,  may  fix  the  time  or  places  of 
holding  public  markets  for  the  sale  of  food,  and  make  such  other  regula- 
tions concerning  them  as  may  conduce  to  the  public  interest.  We  take 
this  to  be  the  true  rule,  because  it  is  necessary  and  proper,  in  harmony 
with  the  sentiments  of  the  people,  universally  practiced  by  the  towns, 
and  universally  submitted  to  by  the  residents  of  the  country."  Wartman 
v.  Philadelphia,  33  Pa.  St.  202. 

*  State  ex  rel.  Daboval  v.  Police  Jury  of  St.  Bernard,  39  La.  Ann.  759; 
State  v.  Natal  (La.),  2  So.  305. 

§126 


560  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

lative  act;  and  the  franchise  is  often  claimed  to  be  void 
because  it  creates  a  monopoly. 

§  127.     Monopolies  —  General     propositions.  —  As    a 

general  proposition,  it  may  be  conceded  that  the  creation  of 
a  monopoly  out  of  an  ordinary  calling  is  unconstitutional. 
But  it  will  not  do  to  say  that  all  monopolies  are  void. 
Every  man  has,  under  reasonable  regulations,  a  right  to 
pursue  any  one  of  the  ordinary  callings  of  life,  as  long  as 
its  pursuit  does  not  involve  evil  or  danger  to  society.  And 
a  law  which  granted  to  one  man,  or  a  few  individuals,  the 
exclusive  privilege  of  prosecuting  the  trade,  would  be  in 
violation  of  the  constitutional  rights  of  those  who  are  pro- 
hibited from  pursuing  the  same  calling.  This  is  clear. 
Mr.  Justice  Field  of  the  Supreme  Court  of  the  United 
States  has  presented  this  proposition  in  very  forceful  lan- 
guage in  the  case  of  the  Butchers'  Union  Co.  v.  Crescent 
City  Co.1  The  late  justice  said:  — 

"  As  in  our  intercourse  with  our  fellow-men,  certain 
principles  of  morality  are  assumed  to  exist,  without  which 
society  would  be  impossible,  so  certain  inherent  rights  lie 
at  the  foundation  of  all  action,  and  upon  a  recognition  of 
them  alone  can  free  institutions  be  maintained.  These  in- 
herent rights  have  never  been  more  happily  expressed  than 
in  the  Declaration  of  Independence,  that  new  evangel  of 
liberty  to  the  people :  *  We  hold  these  truths  to  be  self- 
evident  ' — that  is  so  plain  that  their  truth  is  recognized 
upon  their  mere  statement  — '  that  all  men  are  endowed  ' — 
not  by  edicts  of  emperors,  or  decrees  of  Parliament,  or  acts 
of  Congress,  but  «  by  their  Creator,  with  certain  inalienable 
rights  * — that  is,  rights  which  cannot  be  bartered  away,  or 
given  away,  or  'taken  away,  except  in  punishment  of 
crime  —  *  and  that  among  these  are  life,  liberty  and  the 
pursuit  of  happiness,  and  to  secure  these' — not  grant 
them,  but  secure  them  —  *  governments  are  instituted 

1  111  U.  S.  746,  756,  757. 
§   127 


MONOPOLIES  GENERAL   PROPOSITIONS.  561 

among  men,  deriving  their  just  powers  from  the  consent  of 
the  governed.'  Among  these  inalienable  rights,  as  pro- 
claimed in  that  great  document,  is  the  right  of  men  to  pur- 
sue their  happiness,  by  which  is  meant  the  right  to  pursue 
any  lawful  business  or  vocation,  in  any  manner  not  incon- 
sistent with  the  equal  rights  of  others,  which  may  increase 
their  prosperity  or  develop  their  faculties,  so  as  to  give  to 
them  their  highest  enjoyment.  The  common  business  and 
callings  of  life,  the  ordinary  trades  and  pursuits,  which  are 
innocuous  in  themselves,  and  have  been  followed  in  all 
communities  from  time  immemorial,  must,  therefore,  be 
free  in  this  country  to  all  alike  upon  the  same  conditions. 
The  right  to  pursue  them  without  let  or  hindrance,  except 
that  which  is  applied  to  all  persons  of  the  same  age,  sex 
and  condition,  is  a  distinguishing  privilege  of  citizens  of 
the  United  States,  and  an  essential  element  of  that  free- 
dom which  they  claim  as  their  birthright.  In 
this  country  it  has  seldom  been  held,  and  never  in  so  odious 
a  form  as  is  here  claimed,  that  an  entire  trade  and  busi- 
ness could  be  taken  from  citizens  and  vested  in  a  single 
corporation.  Such  legislation  has  been  regarded  every- 
where else  as  inconsistent  with  civil  liberty.  That  exists 
only  where  every  individual  has  the  power  to  pursue  his 
own  happiness  according  to  his  own  views,  unrestrained, 
except  by  equal,  just  and  impartial  laws." 

/This  constitutional  right  of  the  citizen  to  pursue  any 
occupation  he  may  choose,  which  is  not  inherently  and 
necessarily  wrongful  or  injurious  to  society,  subject  only 
to  reasonable  police  regulations  for  the  protection  of  indi- 
viduals and  of  society  against  incidental  wrongs  and  injur- 
ies, has  recently  been  confirmed  by  the  New  York  Court  of 
Appeals,  in  the  Ticket  Scalpers  case,1  of  which  a  full 
account  is  given  in  a  preceding  section,2  and  to  which  the 

1  People  ex  rel.  Tyroler  v.  Warden  of  City  Prison,  167  N.  Y.  116. 
*  §  123. 

36  §  127 


562  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

reader  is  referred  for  the  details.  Suffice  it  here  to  re- 
peat, that  one  of  the  grounds,  upon  which  the  Court  of 
Appeals  pronounced  the  law  unconstitutional,  was  that  it 
denied  to  individuals  the  right  to  pursue  a  business,  which 
was  not  inherently  fraudulent  or  wrongful,  and  granted  to 
certain  persons,  the  agents  of  transportation  companies, 
the  exclusive  privilege  or  monopoly  of  prosecuting  the 
business  of  selling  transportation  tickets.  The  authorities, 
however,  are  not  unvarying  in  their  deductions  from  the 
application  of  these  general  principles,  which  are  univer- 
sally conceded  to  be  sound,  to  the  facts  and  law  of  a  par- 
ticular case,  as  will  be  more  fully  explained  in  subsequent 
sections. 

When,  on  the  other  hand,  the  State  bestows  upon  one  or 
more  the  privileges  of  pursuing  a  calling,  or  trade,  the 
prosecution  of  which  is  not  a  common  natural  right  because 
it  cannot  be  prosecuted  without  the  aid  of  a  legal  privilege, 
a  lawful  monopoly  is  created,  but  no  right  of  the  individual 
is  violated;  for,  with  the  abolition  of  the  monopoly  thus 
created,  would  disappear  all  right  to  carry  on  the  trade. 
The  trade  never  existed  before  as  a  lawful  calling.  Such 
monopolies  are  valid,  and  free  from  all  constitutional  ob- 
jections.1 The  grant  of  exclusive  franchises  is  a  matter  of 
relatively  common  occurrence,  and  is  rarely  questioned. 

§  128.  Monopolies  and  exclusive  franchises  in  the 
cases  of  railroads,  bridges,  ferries,  street  railways,  gas, 
water,  lighting,  telephone  and  telegraph  companies.  — 

In  order  that  a  railroad,  or  bridge,  may  be  constructed,  or 
a  gas  or  water  plant  be  established,  the  government  must 
grant  to  the  parties  who  contemplate  such  construction,  a 
franchise  or  privilege,  which  is  not  enjoyed  by  individuals 
in  general,  and  which  is  not  procurable  in  any  other  way 
except  by  express  legislative  grant.  In  the  case  of  the 

1  Cooley  on  Torts,  pp.  277,  278. 
§  128 


MONOPOLIES    AND    EXCLUSIVE    FRANCHISES.  5G3 

railroad  or  bridge,  the  privilege  or  franchise  is  the  right  of 
eminent  domain,  whereby  the  railroad  or  bridge  company 
may  appropriate  to  its  own  use,  upon  payment  of  com- 
pensation, the  lands  of  private  owners,  which  are  needed 
in  the  construction  of  the  projected  railroad  or  bridge.  It 
is  barely  possible  that  the  necessary  land  for  the  con- 
struction of  a  bridge  or  ferry  may  be  procurable  by  a 
voluntary  contract  of  sale  and  purchase ;  but  this  is  not 
true  of  a  railroad.  And,  in  the  case  of  the  bridge  or 
ferry,  over  a  navigable  stream,  the  government's  consent 
to  this  extraordinary  use  of  the  stream  must  still  be  ob- 
tained. Therefore,  as  long  as  the  question  is  confined  to 
the  case  of  such  exceptional  franchises,  as  railroads, 
bridges,  ferries,  and  the  like,  it  seems  as  if  the  constitu- 
tional right  of  the  government  has  never  been  seriously 
questioned,  since  it  was  settled  by  the  early  adjudications 
that  the  legislature  could  grant  to  persons  or  to  private 
corporations  the  privilege  of  exercising  the  right  of 
eminent  domain,  in  the  pursuit  of  some  public 
good.1  The  natural  rights  of  no  private  individual  to 
carry  on  a  lawful  business  have  been  thereby  violated.  It 
is,  therefore,  clearly  within  the  power  of  the  legislature  to 
determine  how  many  shall  receive  this  unusual  privilege  or 
franchise,  and  on  what  terms  and  under  what  conditions 
they  shall  be  permitted  to  exercise  it.  Nor  has  the  power 
of  the  legislature,  to  grant  to  one  individual  or  corporation 
an  exclusive  privilege  or  franchise  of  this  kind,  been  seri- 
ously questioned,  except  in  recent  years.  In  every  case, 
however,  but  one,  which  has  come  to  my  notice,  the  power 
of  the  legislature  to  create  an  exclusive  monopoly  of  that 
kind  has  been  confirmed.  It  has  thus  been  held  to  be  law- 
ful to  grant  exclusive  ferry  privileges.2 

1  See  post,  §  141,  on  the  Right  of  Eminent  Domain. 

8  Patterson  v.  Wallmann,  6  N.  D.  608;  Nixon  v.  Reid,  8  S.  D.  607.  In 
the  latter  case,  however,  the  exclusive  franchise  was  sustained,  on  the 
ground  that  it  had  been  granted  before  the  adoption  of  the  constitution, 

§  128 


564  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

It  has  also  been  held  to  be  a  lawful  monopoly,  which 
was  granted  to  a  bridge  company  by  a  city,  by  a  contract, 
wherein  the  city  permits  the  erection  of  one  end  of  the 
bridge  in  a  street  of  the  city,  and  agrees  to  suspend  the  use 
of  its  ferry  franchise  for  twenty-five  years.1  It  was  also 
held  to  be  lawful,  and  not  in  contravention  of  the  Four- 
teenth Amendment  of  the  United  States  Constitution,  for  a 
State  legislature  to  grant  to  a  private  corporation  an  ex- 
clusive franchise  over  a  stream,  which  is  wholly  within  the 
State,  and  the  right  to  exact  toll  of  every  one  for  the  use  of 
the  stream,  in  consideration  of  the  undertaking  of  the  cor- 
poration to  improve  the  navigableness  of  the  stream.2  So, 
likewise,  has  it  been  held  to  be  within  the  power  of  the 
legislature,  without  the  consent  of  the  city,  and  without 
the  payment  of  any  compensation  to  the  city,  to  grant  to 
a  railroad  company,  for  its  own  use,  that  part  of  the  bank 
or  shore  of  a  river,  which  is  known  as  the  "  Public 
Levee,"  and  which  is  located  within  the  city.3  In  Minne- 
sota, the  grant  to  any  person,  having  boats  upon  the  river, 
of  the  exclusive  use  of  so  much  of  a  public  levee  as 
was. necessary  for  its  business,  was  sustained;  provided  the 
exercise  of  this  exclusive  privilege  to  a  part  or  parts  of 
the  levee  did  not  unreasonably  interfere  with  the  use  of 
the  levee  by  the  public  in  general.4 


which  prohibits  the  grant  of  special  privileges,  and  that  the  grant  had 
been  acquiesced  in  by  Congress. 

1  City  of  Laredo  ».  International  Bridge  and  Tramway  Co.,  66  F.  246; 
14  C.  C.  A.  1. 

2  Sands  ».  Manistee  River  Improvement  Co.,  123  U.  S.  288;  Ruggles 
v.  Manistee  River  Improvement  Co.,  123  U.  S.  297. 

8  Portland  &  Willamette  Val.  Ry.  Co.  v.  City  of  Portland,  14  Oreg.  188. 

*  City  of  St.  Paul  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  63  Minn.  330.  In 
New  Orleans,  similar  grants  of  exclusive  right  to  certain  wharves,  were 
made  to  a  certain  railroad,  subject,  however,  to  the  right  of  the  city  to 
charge  the  customary  wharfage  dues  to  vessels,  which  occupied  these 
wharves  with  the  consent  of  the  railroad  company,  but  not  in  the  pro- 
motion of  the  business  of  the  railroad.  When,  afterwards,  the  city 
farmed  out  its  revenues  from  certain  wharves,  including  the  railroad 
§  128 


MONOPOLIES    AND    EXCLUSIVE    FRANCHISES.  5(>5 

In  New  Jersey,  an  act  of  the  legislature  provided  that 
any  citizen  of  the  State,  occupying  since  January  1,  1880, 
for  planting  and  cultivating  oysters,  any  lands  under  the 
tide  waters  of  the  State,  which  are  not  natural  clam  or 
oyster  beds,  shall  thereafter  have  an  exclusive  title  to  such 
lands  for  such  purposes,  and  to  the  oysters  planted  and 
grown  thereon.  This  act  was  held  to  be  unconstitutional, 
because  it  was  a  grant  of  an  exclusive  privilege  by  a 
special  or  local  law,  in  violation  of  the  constitution  of  the 
State.1 

It  has,  of  course,  been  the  settled  law,  since  the  decision 
of  the  Supreme  Court  of  the  United  States  in  the  case  of 
the  Charles  River  Bridge  v.  Warren  River  Bridge,3  that  no 
grant  of  a  franchise  is  exclusive,  unless  it  is  made  so  by 
an  express  declaration  of  the  legislature.8 

The  power  of  the  legislature  to  grant  an  exclusive  mo- 
nopoly in  the  case  of  railroads,  bridges,  ferries,  and  the 
like,  seems  still  to  be  well-settled.  But  when  the  same 
principle  is  applied  to  the  more  common  and  numerous 
franchises,  as,  for  example,  a  more  or  less  extraordinary 
use  of  the  streets  of  a  city,  the  cases  do  not  always  support 
the  distinctions  that  have  been  made.  Thus  it  has  been 
held  to  be  reasonable  to  grant  to  one  or  more  the  exclusive 
right  to  remove  the  carcasses  of  animals  and  other  offal 
and  garbage  of  a  city.4  But  the  Supreme  Court  of  Kansas 
opposes  this  conclusion,  and  holds  that  a  board  of  health 

wharves,  to  the  Louisiana  Construction  and  Improvement  Company,  the 
right  to  collect  these  wharfage  dues  from  such  vessels  passed  to  the 
assignee  company.  The  Clearwater,  75  F.  309  (C.  C.  A.) ;  New  Orleans 
B.,  R.  M.  &  C.  A.  S.  S.  Co.  v.  Louisiana  Construction  4  Imp.  Co.,  Id. 

1  State  v.  Post,  55  N.  J.  L.  264. 

*  11  Pet.  420. 

8  See  the  recent  cases,  Wheeling  Bridge  Co.  v.  Wheeling  &  Belmont 
Bridge  Co.,  34  W.  Va.  155;  Wheeling  &  Belmont  Bridge  Co.  ».  Wheeling 
Bridge  Co.,  138  U.  S.  287. 

«  Vandine,  Petitioner,  9  Pick.  187  (7  Am.  Dec.  361);  River  Rendering 
Co.  v.  Behr,  7  Mo.  App.  345;  State  v.  Orr,  68  Conn.  101 ;  City  of  Grand 
Rapids  v.  DeVries  (Mich.  1900),  82  N.  W.  269. 

§  128 


566  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

or  city  government,  in  granting  to  one  or  more  persons  the 
exclusive  privilege  of  removing  the  garbage  of  a  city  from 
private  premises,  as  well  as  from  public  places,  created  an 
illegal  monopoly.1  Certainly  the  removal  of  the  garbage, 
offal  and  other  refuse  of  a  city,  is  not  a  business  which  can 
be  safely  left  to  unrestricted  private  enterprise.  The  pub- 
lic health  and  comfort  imperatively  demand  that  it  should 
be  done  with  care,  and  by  persons  who  would  come  under 
the  rigid  control  of  the  health  officers.  This  case  from 
Kansas  can  be  justified  only  on  the  ground,  that  the  busi- 
ness should  be  done  by  the  city  government  itself,  instead 
of  being  farmed  out  to  private  corporations  or  individuals. 
It  has  been  held  in  some  States,  although  a  different 
conclusion  is  reached  in  other  States,  that  the  exclusive  grant 
to  a  company  of  the  right  to  furnish  the  city  with  gas,  was 
unlawful  and  void,  as  being  a  monopoly  :  "  As,  then,  no  con- 
sideration whatever,  either  of  a  public  or  private  character, 
was  reserved  for  the  grant ;  and  as  the  business  of  manu- 
facturing and  selling  gas  is  an  ordinary  business,  like  the 
manufacturing  of  leather,  or  any  other  article  of  trade  in 
respect  to  which  the  government  has  no  exclusive  pre- 
rogative, we  think  that  so  far  as  the  restriction  of  other 
persons  than  the  plaintiffs  from  using  the  streets  for  the 
purpose  of  distributing  gas  by  means  of  pipes,  can  fairly 
be  viewed  as  intended  to  operate  as  a  restriction  upon 
its  free  manufacture  and  sale,  it  comes  directly  within  the 
definition  and  description  of  a  monopoly  ;  and  although  we 
have  no  direct  constitutional  provision  against  a  monopoly, 
yet  the  whole  theory  of  a  free  government  is  opposed  to 
such  grants,  and  it  does  not  require  even  the  aid  which  may 
be  derived  from  the  Bill  of  Rights,  the  first  section  of  which 
declares  *  that  no  man  or  set  of  men  are  entitled  to  exclu- 
sive public  emoluments'  to  render  them  void."2  Cer- 

1  In  re  Lowe,  54  Kans.  757.    See,  also,  to  the  same  effect,  Kussel  v. 
City  of  Erie,  8  Pa.  Dist.  Rep.  105. 

2  Norwich  Gaslight  Co.  v.  Norwich  City  Gas  Co.,  25  Conn.  19;  State  v. 

§  128 


MONOPOLIES    AND    EXCLUSIVE    FRANCHISES.  567 

tainly  it  is  a  franchise  to  make  excavations  for  the  laying 
of  pipes  for  the  distribution  of  the  gas,  very  different  from 
"  the  manufacture  of  leather;  "  and  being  a  franchise,  the 
enjoyment  of  it  may  be  made  an  exclusive  privilege.  The 
public  interests  may  also  be  protected  against  the  indis- 
criminate allowance  of  excavations  of  the  streets  for  the 
purpose  of  laying  down  the  conducting  pipes  ;  and  so  it  has 
been  held  by  the  majority  of  the  modern  cases,  that  an  ex- 
clusive franchise  to  supply  illuminating  gas  to  a  city  may 
be  lawfully  granted  to  one  corporation.1  The  same  con- 
clusion has  been  reached  as  to  the  power  of  the  govern- 
ment to  grant  an  exclusive  franchise  for  the  supply  of  a 
city  with  electric  light,2  and  for  the  construction  and  main- 
tenance of  street  railways  along  certain  streets,  and  within 
certain  areas.3 

It  has  also  been  held  that,  even  if  monopolies  ia  gen- 
eral are  prohibited,  it  is  nevertheless  competent  to  grant 
the  exclusive  right  to  a  company  to  supply  a  city  with 
water  for  a  term  of  years.4  In  Iowa,  in  a  case  involving 

Cincinnati,  etc.,  Gas  Co.,  18  Ohio  St.  292;  Parkersburg  Gas  Co.  v.  Park- 
ersburg,  30  W.  Va.  435. 

1  People's  Gaslight  Co.  v.  Jersey  City,  40  N.  J.  L.  297;  New  Orleans 
Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650;  Louisville  Gas  Co.  v. 
Citizens' Gas  Co.,  115  U.  S.  683;  reversing  8.  c.  81  Ky.263;  Indianapolis  v. 
Indianapolis  Gas  Co.,  66  Ind.  396;  Newport  v.  Newport  Light  Co.,  84 
Ky.  167;  State  v.  Milwaukee  Gaslight  Co.,  29  Wis.  454. 

8  Grand  Rapids  Electric,  etc.,  Co.  v.  Grand  Rapids  Edison,  etc.,  Co., 
33  Fed.  659. 

,'  3  Citizens'  Street  Railway  Co.  c.  Jones,  34  Fed.  579;  Davies  v.  New 
York,  14  N.  Y.  506;  In  re  N.  Y.  Elevated  R.  R.  Co.,  70  N.  Y.  327;  In  re 
Gilbert  Elevated  R.  R.  Co.,  70  N.  Y.  361 ;  Newell  v.  Minn.,  etc.,  Ry.  Co., 
35  Minn.  112;  Des  Moines  Street  Railway  Co.  v.  Des  Moines  E.G. 
Street  Railway  Co.,  73  Iowa,  513;  Birmingham  &  P.  M.  Street  Ry.  Co.  r. 
Birmingham  Street  Ry.  Co.,  79  Ala.  465;  Fort  Worth  Street  Ry.  Co.  v. 
Rosedale  Street  Ry.  Co.,  68  Tex.  169. 

*  Memphis  v.  Water  Co.,  5  Heisk.  492.  But  see  contra,  City  of  Bren- 
ham  v.  Brenham  Water  Co.,  67  Tex.  143;  Altgelt  b.  City  of  San  Antonio, 
81  Tex.  436;  Edwards  County  v.  Jennings  (Tex.),  35  S.  W.  1053;  and 
in  further  support  of  the  text,  New  Orleans  Water  Works  Co.  o.  Rivers, 
115  U.  S.  674;  St.  Tammany  Water  Works  Co.  v.  New  Orleans  Water 

§  128 


568  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

much  doubt,  it  was  declared  to  be  unreasonable  to  grant  to 
one  person  the  exclusive  right  to  run  omnibuses  in  the 
city.1 

In  most  of  the  cases,  in  which  an  extraordinary  use 
of  the  streets  and  highways  is  granted  as  a  privilege  or 
franchise,  to  the  gas,  water,  electric,  telegraph,  telephone 
and  street  railway  companies,  the  grant  is  not  of  an 
exclusive  franchise  (it  is  more  common  in  the  case  of 
street  railways);  and  the  power  of  the  legislature  to  grant 
a  parallel  franchise  of  the  same  kind  to  a  competitor,  has 
not  been  taken  away  by  the  prior  grant  of  the  privilege,  as 
long  as  the  privilege  was  not  by  express  terms  made  an 
exclusive  one.  Thus  a  legislative  grant  in  general  terms  to 
supply  water  to  a  city,  does  not  give  an  exclusive  franchise.2 
Nor  is  an  exclusive  franchise  to  be  inferred  from  an  agree- 
ment of  the  city  to  do  nothing  to  interfere  with  the  exclu- 
sive character  of  the  franchise  of  a  gas  company,  where 
the  power  to  make  it  exclusive  is  lodged  in  the  legis- 
lature of  the  State,  and  not  in  the  city  government.3 
In  such  cases,  there  is  no  violation  of  any  franchise  right, 
if  a  competing  franchise  is  granted  to  another  company. 
But  where  an  exclusive  franchise  is  granted  to  a  corpora- 
tion —  to  supply  a  city  with  water,  to  furnish  gas  or  elec- 
tric light,  or  to  construct  a  street  railway  along  a  certain 
route,  — only  by  the  exercise  of  the  power  of  eminent  do- 
Works  Co.,  120  U.  S.  64;  Stein  v.  Bienville  Water  Supply  Co.,  34  F.  145 ; 
Westerly  Water  Works  v.  Town  of  Westerly,  75  Fed.  181 ;  Seamen's 
Friend  Society  v.  City  of  Westerly,  75  Fed.  181;  In  re  City  of  Brooklyn, 
143  N.  Y.  506;  Long  Island  Water  Supply  Co.  v.  City  of  Brooklyn,  166  U- 
S.  685;  Rockland  Water  Co.  v.  Camden  and  R.  Water  Co.,  80  Me.  544; 
Atlantic  City  Water  Works  v.  Atlantic  City,  39  N.  J.  Eq.  367.  But 
see,  post,  page  570,  as  to  the  power  of  the  legislature  to  provide  in  such  a 
case  for  a  municipal  water  works  plant. 

1  Logan  v.  Payne,  43  Iowa,  524  (22  Am.  Rep.  261). 

*  In  re  City  of  Brooklyn,  143  N.  Y.  596;  In  re  Long  Island  Water  Sup- 
ply Co.,  143  N.  Y.  596;  Rockland  Water  Co.  v.  Camden  &  R.  Water  Co., 
80  Me.  644;  Bartholomew  v.  City  of  Austin,  85  Fed.  359;  29  C.  C.  A.  568. 

3  Bailey  v.  City  of  Philadelphia,  39  A.  494;  41  W.  N.  C.  629. 
§  128 


MONOPOLIES    AND    EXCLUSIVE    FRANCHISES.  569 

main,  and  upon  the  payment  of  proper  compensation,  may 
that  exclusive  franchise  be  taken  away  by  the  grant  to 
another  corporation  of  a  competing  franchise.1 

But  where  a  private  corporation  has  acquired  by  legisla- 
tive grant  an  exclusive  franchise  to  supply  a  city  with 
light,  water,  transportation  facilities,  and  the  like;  the 
duty  of  the  corporation,  towards  the  public,  to  satisfy  the 
public  needs,  is  much  stronger  than  it  is  where  the  fran- 
chise is  not  exclusive.  Not  only  is  the  exclusive  fran- 
chise liable  to  forfeiture  for  failure  of  the  company  to 
reasonably  perform  its  duty  to  the  public ;  but  where  the 
public  health  is  endangered,  as  in  the  case  of  the  supply  of 
impure  water,  the  exclusive  character  of  the  franchise  may 
be  ignored,  and  a  franchise  be  granted  to  a  rival  company. 
This  is  held  to  be  only  a  reasonable  exercise  of  the  police 
power  in  the  preservation  of  the  public  health.  It  would 
be  a  monstrous  doctrine  that,  because  an  exclusive  franchise 
has  been  granted  to  a  water  company,  the  government 
would  be  powerless  to  protect  a  city  from  the  diseases  which 
impure  water  engenders.2  Still  the  exclusive  character  of 
the  franchise  will  be  protected  from  infringement,  even 
when  a  rival  company  proposes  to  furnish  better  and  purer 
water,  as  long  as  the  legislature  or  city  government  does 

1  Charles  River  Bridge  v.  Warren  River  Biidge,  11  Pet.  420:  West 
River  Bridge  v.  Dix,  6  How.  607;  Lewis  v.  City  of  Newton,  75 
Fed.  884;  In  re  Rochester  Water  Commissioners,  66  N.  Y.  413; 
Central  Bridge  Co.  v.  Lowell,  4  Gray,  474;  Central  City  Horse  Ry. 
v.  Fort  Clark,  etc.,  Ry.  Co  ,  87  111.  623;  Lake  Shore,  etc.,  R.  R.  Co. 
*.  Chicago,  etc.,  R.  R.  Co.,  97  111.  506;  N.  C.  R.  R.  Co.  v.  Carolina  Cen- 
tral R.  R.  Co.,  83  N.  C.  489;  In  re  Towanda,  91  Pa.  St.  216.  The  cases, 
in  support  of  this  rule  of  the  law  of  eminent  domain  are  numerous;  I 
have  only  cited  a  few. 

3  Stein  v.  Bienville  Water  Supply  Co.,  34  Fed.  145;  5.  c.  141  U.  S. 
67;  National  Water  Works  v.  Kansas  City,  28  Fed.  921.  In  the  case  of 
Stein  v.  Bienville  Water  Supply  Co.,  the  exclusive  franchise  was  not  to 
supply  the  city  with  water  generally,  but  to  supply  it  from  a  particular 
creek.  And  it  was  held  to  be  no  infringement  of  the  exclusive  franchise 
to  grant  to  another  corporation  the  power  to  use  the  streets  of  the  city 
to  supply  the  city  with  water  drawn  from  another  source. 

§  1 28 


570  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

not  exercise  the  police  power  to  condemn  the  existing  water 
supply.  Thus  the  constitution  of  Louisiana  of  1879, 
abrogated  the  monopolistic  features  of  all  existing  corpora- 
tions. This  constitutional  action  was  clearly  in  violation  of 
the  United  States  constitution,  which  prohibits  States  from 
passing  any  law  impairing  the  obligation  of  a  contract. 
And  the  Supreme  Court  of  the  United  States  held  that  this 
clause  of  the  Louisiana  constitution  did  not  authorize  a 
rival  water  company  to  furnish  water  to  the  people  of  New 
Orleans,  merely  on  the  ground  that  they  could  furnish  a 
better  and  a  purer  water,  as  long  as  the  legislature  or  the 
city  government  had  not,  in  the  exercise  of  the  police 
power,  condemned  the  water  which  was  supplied  by  the 
company  which  had  procured  an  exclusive  franchise  from 
the  State  legislature.1 

The  grant  to  a  private  corporation  of  a  franchise,  to 
supply  water  or  light  to  a  city,  does  not  always  operate  as 
an  exclusive  franchise,  so  as  to  preclude  the  exercise  by  the 
city  of  its  authority  to  establish  its  own  plant  in  opposition 
to  the  private  company.  Thus,  in  Minnesota,  a  private  water 
company  was  given  the  right  to  supply  the  city  of  Duluth 
with  water;  and  in  the  grant  of  the  franchise  it  was  stipu- 
lated that  the  city  shall  have  the  right  to  purchase  the 
water  plant.  The  city,  however,  chose  to  establish  its 
own  water  plant,  instead  of  buying  out  the  water  company. 
It  was  held  that  the  water  company  had  not  such  an  ex- 
clusive franchise  as  would  force  the  city  to  purchase  the 
company's  plant,  or  forego  municipal  ownership  of  its  water 
supply.2  And  in  West  Virginia  it  was  held  that  an  ex- 
clusive franchise  to  light  the  city  streets  with  gas,  did  not 
preclude  the  abandonment  of  gas  light  and  the  adoption  of 
electric  light  in  its  stead;  and  that  such  municipal  action 
was  not  a  violation  of  any  franchise  rights  of  the  gas  com- 

1  St.  Tammany  Water  Works  Co.  v.  New  Orleans  Water  Works  Co., 
120  U.  S.  64. 

2  Long  v.  City  of  Duluth,  49  Minn.  280. 

§  128 


MONOPOLIES    AND    EXCLUSIVE    FRANCHISES.  571 

pany.1  And  so,  likewise,  in  Indiana,  it  has  been  held  that 
no  monopoly  of  supplying  the  city  with  gas  on  its  streets 
was  created,  by  a  stipulation  in  the  charter  of  the  gas  com- 
pany, that  it  shall  erect  and  maintain  a  certain  number  of 
lamps  on  certain  streets,  and  increase  them  when  the  city 
government  directs  it,  and  that  the  city  shall  pay  for  suffi- 
cient gas  to  keep  the  lamps  lighted.  Notwithstanding  this 
contract,  it  was  held  that  the  city  could  patronize  other  gas 
companies,  and  was  not  obliged  to  procure  all  the  gas  it 
needed  from  the  one  company,  with  whom  this  contract 
was  made.2 

In  a  recent  case,  the  Federal  Circuit  Court  held  that  an 
exclusive  franchise  may  be  granted  by  implication,  and 
was  granted  upon  these  facts.  A  State  statute  granted  a 
city  power  to  construct  its  own  waterworks  or  to  contract 
with  private  parties  for  supplying  the  city  with  water. 
The  city  government  chose  the  latter  plan,  and  granted  a 
water  franchise  to  a  private  corporation.  When  the  water 
plant  of  the  company  was  completed  and  the  company  was 
about  to  supply  the  city  with  water,  an  ordinance  was 
passed  by  the  city  council,  ratified  by  a  vote  of  the  people, 
which  provided  for  the  construction  of  waterworks  by  the 
city  government.  The  court  held  this  subsequent  action 
of  the  city  to  be  in  impairment  of  the  previous  contract 
with  the  private  company,  in  violation  of  the  constitution 
of  the  United  States.3  It  does  not  seem  possible  to  recon- 
cile this  case  with  the  current  of  authority,  both  State  and 
/Federal,  except  so  far  as  it  holds  the  city  liable  on  any  con- 
tract which  it  had  made  to  take  water  from  the  private 
company  during  the  stated  period.  For  the  uniform  ruling 
of  the  courts  has  been  that  a  franchise  is  never  exclusive, 
except  so  far  as  it  has  been  expressly  declared  to  be  so. 

1  Parkersburg  Gas  Co.  v.  Parkersburg,  30  W.  Va.  435. 

2  City  of  Vincennes  v.  Citizens'  Gaslight  Co.,  132  Ind.  114. 

3  Westerly  Waterworks  Co.  v.  Town  of  Westerly,  75  Fed.  181;  Sea- 
men's Friend  Society  v.  City  of  Westerly,  75  Fed.  181. 

§  128 


572  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

But,  apart  from  this  question  of  construction,  whether  a 
particular  franchise  is  exclusive,  the  equally  important  but 
more  fundamental  question  has  been  raised  by  some  recent 
decisions,  whether  an  exclusive  franchise  can  be  granted  with- 
out exceeding  the  power  of  the  legislature.  Until  recently, 
the  right  of  the  government  to  grant  an  exclusive  public 
franchise  for  water,  light,  or  railway,  has  been  fully  con- 
ceded, as  a  logical  deduction  from  the  power  to  grant  to 
a  few  persons  in  the  promotion  of  the  public  welfare 
any  privilege  or  franchise  which  cannot  be  left  open  to 
general  competition.  But  in  several  of  the  State  con- 
stitutions, there  is  an  express  prohibition  of  the  grant  of 
exclusive  or  monopolistic  franchises.  The  clause  in  the 
North  Carolina  constitution  is  as  follows:  "Perpetuities 
and  monopolies  are  contrary  to  the  genius  of  a  free  State, 
and  ought  not  to  be  allowed."  A  similar,  if  not  identical, 
clause  is  to  be  found  in  the  constitutions  of  Alabama  and 
Texas.  The  Alabama  and  North  Carolina  courts  have 
declared  that  this  clause  of  the  State  constitutions  prohibits 
the  legislatures  from  granting  any  exclusive  franchise 
whatever.1  And  the  United  States  Circuit  avoids  the  set- 
tlement of  the  direct  question,  whether  a  similar  clause  in 
the  Texas  constitution  prohibits  the  grant  of  an  exclusive 
franchise  to  a  water  company,  by  holding,  and  justly,  too, 
that  the  statute  in  question  did  not  grant  an  exclusive  fran- 
chise. But  the  court  took  occasion  to  add,  by  way  of 
obiter  dictum,  that  in  its  opinion,  the  constitutional  clause 
in  question  did  not  inhibit  an  express  grant  by  the  legis- 
lature of  an  exclusive  franchise,  where  the  public  interests 
are  promoted  by  giving  to  the  grant  of  a  franchise  the 
character  of  exclusiveness.2 

1  Thrift  v.  Elizabeth  City,  122  N.  C.  31  (water  company  franchise) ; 
Birmingham  &  P.  M.  Street  Ry.  Co.  v.  Birmingham  Street  Ry.  Co.,  79 
Ala.  465. 

8  Bartholomew  v.  City  of  Austin,  85  Fed.  359;  29  C.  C.  A.  668. 

§  128 


WHAT    ORDINARY    OCCUPATIONS    MAY   BE   MONOPOLIES.       573 

§  129.  Patents  and  copyrights,  how  far  monopolies.  — 

It  is  often  stated,  that  the  copyright  and  the  patent  of  an 
invention  are  monopolies,  which  are  permissible  by  law. 
But  it  seems  to  me  that  they  are  monopolies  only  so  far  as 
they  make  the  right  of  manufacture  exclusive.  If  the  com- 
mon-law theory  in  respect  to  these  subjects  be  correct,  that 
there  is  no  natural  right  to  the  exclusive  manufacture  of 
one's  own  inventions  and  intellectual  productions,  then  the 
grant  of  the  exclusive  right  to  manufacture  is  a  monopoly, 
and  cannot  be  better  sustained  than  a  monopoly  of  the 
manufacture  of  sugar  or  any  other  product.  But  the  prod- 
ducts  of  mental  labor,  when  they  take  the  shape  of  a  book 
or  an  invented  machine,  ought  to  be  as  secure  to  the  pro- 
ducer, as  the  products  of  manual  labor,  and  it  is  the  possibly 
unconscious  recognition  of  the  justice  of  these  claims,  which 
brings  about  popular  justification  of  these  so-called  mo- 
nopolies. 

§  130.  When  ordinary  occupations  may  be  made  ex- 
clusive monopolies  —  Saloons  —  Banking  —  Insurance  - 
Peddling  —  Building  and  loan  associations  —  Restriction 
of  certain  trades  to  certain  localities  —  Slaughter- 
houses—  Markets. — Notwithstanding  the  contradictions 
of  the  authorities,  it  is  not  difficult  to  determine  on  princi- 
ple, as  enunciated  above,  that  the  grant  of  privileges  not 
otherwise  acquirable  may  be  made  a  monopoly,  but 
that  a  monopoly  cannot  be  made  of  the  ordinary  lawful 
occupations.  The  difficulty  becomes  almost  inexplicable, 
when  the  exclusive  privilege  is  granted  of  carrying  on  a  bus- 
iness, which  is  prohibited  to  others,  because  the  unlimited 
pursuit  of  it  works  an  injury  to  society.  There  is  no  doubt 
that  a  trade  or  occupation,  which  is  inherently  and  neces- 
sarily injurious  to  society,  when  it  is  unrestricted  and  left 
open  to  private  enterprise,  may  be  prohibited  altogether. 
If  it  is  lawful  for  the  State  to  prohibit  a  particular  business 
altogether,  the  pursuit  of  such  a  business  would,  if  permit- 

§  130 


574  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

ted  to  anyone,  be  a  privilege  or  franchise,  and  like  any 
other  franchise  may  be  made  exclusive.  This  is  but  a 
logical  consequence  of  the  admission,  that  the  State  has 
the  power  to  prohibit  the  trade  altogether.  Such  an  ad- 
mission is  fatal  to  a  resistance  of  the  power  to  make  it  a 
monopoly.  It  has  thus  been  held  to  be  constitutional  to 
limit  the  number  of  saloons  or  bar-rooms  for  which  licenses 
will  be  issued.  A  Massachusetts  statute  provided  that  the 
number  shall  not  exceed  one  for  each  one  thousand  of  the 
population  of  a  city  or  town,  and  it  was  held  not  to  violate 
the  constitutional  prohibition  of  unequal  privileges;  the 
court  resting  its  judgment  on  the  proposition  that  the  liquor 
business  may  be  prohibited  altogether;  and  hence  the  lim- 
itation of  the  number  of  saloons  was  only  a  reasonable 
police  regulation,  which  the  legislature  could  lawfully  adopt 
in  the  place  of  total  prohibition,  in  the  exercise  of  its  wise 
discretion.1 

Banking  and  insurance  are  in  one  sense  of  the  word 
ordinary  callings,  which  the  man  of  sufficient  capital  could 
successfully  pursue;  and,  in  the  case  of  banking,  he  could 
without  doubt  safeguard  the  interests  of  depositors  within 
the  utmost  reason.  It  is  probably  true  that  this  could  be 
effected  in  the  case  of  all  kinds  of  insurance  other  than 
life;  inasmuch  as  marine,  fire,  storm,  and  other  like  kinds 
of  insurance  are  taken  out  usually  to  cover  only  one,  three 
and  five  years.  But  in  a  policy  of  life  insurance,  interests 
are  created  and  acquired,  which  it  might  require  many 
years  to  realize.  To  permit  private  individuals,  no  mat- 
ter how  wealthy  they  are,  to  engage  in  the  business  of  life 
insurance,  would  be  a  gross  wrong  to  policy  holders,  be- 
cause by  no  measures  could  their  interests  be  properly 
safe-guarded  against  the  likely  accident  of  the  death  of  the 

1  Decie  v.  Brown,  167  Mass.  290.     See,  to  the  same  effect,  Plumb  v. 
Cnrystie,  103  Ga.  686;  Deal  v.  Singletary,  106  Ga.  466.    This  general 
principle  is  the  one  which  underlies  the  law  of  restrictive  licenses.    The 
reader  is  referred  to  §  119  for  a  fuller  discussion  of  the  matter. 
§  130 


WHAT   ORDINARY   OCCUPATIONS   MAY   BE   MONOPOLIES.       575 

insurer.  A  statute,  which  would  prohibit  any  person  or 
corporation  from  issuing  a  policy  of  life  insurance,  unless 
expressly  authorized  by  the  laws  of  the  State,1  would  be  clearly 
constitutional.  And  it  would  not  be  unconstitutional  to  pro- 
hibit absolutely  a  natural  person  from  issuing  a  policy  of  life 
insurance  under  any  circumstances.  But  it  would  be  more 
open  to  question,  how  far  the  business  of  marine,  fire  aud 
other  like  insurance  could  by  statute  be  converted  into  a 
monopoly  or  exclusive  franchise,  and  be  denied  altogether 
to  natural  persons.  That  the  business  may  be  subject  to 
regulations,  which  are  needed  to  assure  the  policy  holder 
of  the  possession  by  the  insurer  of  ample  funds  to  pay  the 
losses  under  the  policies  when  they  occur,  is  unquestioned. 
But  this  can  be  readily  accomplished  in  all  other  kinds  of 
insurance,  other  than  life,  without  denying  to  the  natural 
person  absolutely  the  right  to  issue  a  policy  of  insurance. 
The  limited  duration  of  policies  of  insurance,  other  than 
life,  makes  the  accident  of  death  of  the  insurer  a  matter  of 
little  moment. 

The  same  principles  apply  to  the  business  of  bank- 
ing. There  is  no  reason  why  a  successful  police  regu- 
lation of  the  business  of  banking,  in  the  interests  of 
depositors  and  other  creditors,  is  not  consistent  with 
the  recognition  and  permission  of  the  existence  of 
private  banks  and  banking  houses;  at  least  so  far 
as  the  necessary,  and  what  might  be  called  the  legiti- 
mate and  invariable,  business  of  banking  is  con- 
cerned; viz.,  the  receipt  of  deposits  and  the  lending  of 
money  to  borrowers.  It  is  plain  that  the  government 
could  not  allow  private  bankers  to  issue  bank  notes,  which 
shall  pass  current,  as  a  substitute  for  legal  tender.  But 
that  is  an  extraordinary  function  of  banks,  which  is  easily 
separable  from  the  common  aud  ordinary  banking  busi- 
ness, and  which  in  this  country  is  now  practically  prohibited 

1  Commonwealth  v.  Vrooman,  164  Pa.  St.  306. 

§  130 


576  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

to  all  banks  and  bankers,  other  than  the  national  banks, 
i.  e.,  banks  which  have  been  incorporated  under  the  Na- 
tional Banking  Act.  I  believe,  therefore,  the  Supreme 
Court  of  South  Dakota  was  right,  when  it  declared  that  the- 
State  banking  law  was  unconstitutional,  so  far  as  it  pro- 
hibited any  person  or  firm  from  carrying  on  the  business 
of  banking,  by  receiving  deposits,  by  discounting  and  nego- 
tiating notes,  buying  and  selling  exchange,  coin  and  bul- 
lion, etc.,  without  first  becoming  an  incorporated  association 
under  the  act.1  The  right  of  doing  a  banking  business 
of  the  kind  described  was  properly  characterized  by  the 
court  as  a  right  of  the  citizen,  which  could  not  be  taken 
away  from  him,  without  violating  his  constitutional  liberty. 
He  may  be  rightfully  subjected  to  all  kinds  of  reasonable 
police  regulations,  which  are  designed  to  protect  depositors 
against  the  fraud  and  insolvency  of  the  banker;  but  the 
absolute  prohibition  of  the  business,  to  any  but  incorpo- 
rated companies,  is  not  sanctioned  by  any  threatened 
danger  or  injury  to  the  public.  However,  the  Supreme 
Court  of  North  Dakota  reached  a  different  conclusion, 
holding  that  a  similar  law  was  constitutional.2 

It  has  been  held  in  Oklahoma  to  be  an  unconstitutional 
grant  of  a  special  privilege  to  provide  by  law  that  all  the 
territorial  printing  shall  be  done  by  a  particular  named 
company,  in  violation  of  the  act  of  Congress,  July  30, 
1886,  which  prohibits  the  territorial  legislature  from  pass- 
ing any  special  law,  granting  any  exclusive  privilege, 
immunity  or  franchise.3 

The  most  remarkable  case,  involving  the  creation  of  an 
exclusive  privilege  of  the  pursuit  of  an  ordinary  call- 
ing or  business,  is  that  of  an  act  of  the  legislature  of 
Pennsylvania  which  requires  all  peddlers  to  take  out 
licenses,  before  they  can  lawfully  ply  their  busi- 

1  State  v.  Scougal,  3  S.  D.  55  (51  N.  W.  858). 

2  State  ex  rel.  Goodsill  v.  Woodmause,  1  N.  D.  246  (46  N.  W.  970). 
s  Guthrie  Daily  Leader  ».  Cameron,  3  Okl.  677  (41  Pac.  Rep.  635). 

§  130 


WHAT   ORDINARY    OCCUPATIONS    MAY    BE   MONOPOLIES.       577 

ness ;  and  restricts  the  issue  of  such  licenses  to 
physically  disabled  persons.  And  the  denial  of  the 
right  to  peddle  to  able-bodied  persons  is  declared  by  the 
Supreme  Court  of  Pennsylvania  to  be  a  constitutional 
exercise  of  the  police  power  to  protect  society  against  law- 
less able-bodied  vagrants.  It  was  held,  for  that  reason, 
that  the  statute  did  not  violate  any  inherent  and  indefeasible 
right  of  "  acquiring,  possessing  and  protecting  property."1 
Surely  it  is  a  gross  misstatement  of  fact  that  able-bodied 
peddlers  are  necessarily  vagrants  and  lawless  persons. 
Doubtless,  the  peddlers  commit  many  frauds  upon  the 
credulous  and  ignorant.  But  they  are  not  all  dishonest ; 
and  the  business  of  peddling  is  not  necessarily  dishonest, 
any  more  than  is  the  business  of  any  other  small  tradesman, 
who  deals  in  lawful  articles  of  trade,  and  who  has  his 
established  place  of  business.  The  only  necessary  dis- 
tinction between  a  peddler  and  the  ordinary  small  trades- 
man, lies  in  the  fact  that  the  former  has  no  permanent 
place  of  business,  but  carries  his  stock  of  goods,  on  his 
back  or  in  a  wagon,  from  place  to  place,  and  from  house 
to  house.  The  peddlers  may  be  lawfully  required  to  sub- 
mit themselves  to  police  regulations,  for  the  prevention  of 
the  practice  of  frauds;  and  they  may  be  lawfully  required 
to  take  out  a  license,  and  to  pay  a  reasonable  fee  there- 
for; but  the  business  of  peddling  cannot  be  lawfully 
converted  by  statute  into  an  exclusive  privilege  of 
the  halt  and  the  blind,  without  violating  the  natural  right 
of  the  able-bodied  person  to  pursue  the  calling.  The  busi- 
ness is  not  inherently  and  necessarily  harmful  to  society. 
It  cannot,  therefore,  according  to  the  prevalent  principles 
of  constitutional  limitations,  be  made  the  exclusive  privi- 
lege or  monopoly  of  certain  classes  of  the  population. 
Another  peculiar  immunity  or  privilege  is  the  exemption 

1  Commonwealth  v.  Brinton,  132  Pa.  St.  62;  Commonwealth  t.  Gard- 
ner, 183  Pa.  St.  284. 

37  §  130 


578  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

by  statute  of  building  and  loan  associations  from  the 
prohibitions  of  the  laws  against  usury.  Such  exemptions 
have  been  declared  to  be  constitutional.1  In  a  previous 
section,2  I  have  explained  my  reasons  for  declaring  all 
laws  against  usury,  which  are  nothing  more  than  regula- 
tions of  the  borrowing  price  of  money,  to  be  an  uncon- 
stitutional interference  with  the  liberty  of  contract.  But 
if  it  is  constitutional  to  prohibit  one  man  from  charging 
more  than  a  stated  rate  of  interest  for  the  loan  of  money, 
it  certainly  cannot  be  constitutional  to  permit  another  or 
a  particular  class  of  corporations,  to  charge  a  higher  rate. 
The  constitutional  guaranty,  both  State  and  Federal,  of 
the  equal  protection  of  the  laws,  is  most  clearly  violated 
by  any  such  discrimination.  I  am  not  unaware  of  the 
argument  that  the  contractual  relations  of  a  building  and 
loan  association  and  a  borrowing  member  of  such  an  asso- 
ciation are  peculiar,  and  contain  features  which  are  absent 
from  the  ordinary  relation  of  debtor  and  creditor.  But  if 
it  is  allowable  for  the  government  to  prohibit  in  any  case 
the  stipulation  for  more  than  the  stated  maximum  rate  of 
interest,  in  any  instrument  of  indebtedness,  the  prohibition 
should  be  uniform  and  applicable  alike  to  all  debtors  and 
creditors,  including  building  and  loan  associations.3 

Not  only  is  it  true  that,  where  the  public  interests  re- 
quire it,  ordinary  callings  and  businesses  may  be  converted 
by  statute  into  more  or  less  exclusive  monopolies,  but  the 
same  principle  applies  to  those  cases,  where  the  law  pro- 
vides that  a  particular  trade  shall  be  conducted  in  cer- 

1  Vermont  Loan  &  Trust  Co.   v.  Whithed,   2  N.    D.  82;    Cook   v. 
Equitable  Bldg.  &  Loan  Assn.,  104  Ga.  814;  Livingston  Loan  &  Building 
Assn.,  49  Neb.  200;  Smoot  v.  People's  Perpetual  Loan  &  Building  Assn. 
(Va.),  29  S.  E.  746;  Iowa  Savings  &  Loan  Assn.  v.  Heidt,  107  Iowa,  297; 
Zenith  Building  &  Loan  Assn.  v.  Heimbach  (Minn.'  99),  79  N.  W.  609. 
But  see  Gordon  v.  Winchester  Building  &  Loan  Association,  75  Ky.  110. 

2  §  106. 

3  See,  to  that  effect,  Gordon  v.  Building  Association,  12  Bush,  110; 
Simpson  v.  Kentucky  Citizens'  Bldg.  &  Loan  Assn.  (KyO,  41  S.  W.  570. 

§  130 


WHAT   ORDINARY    OCCUPATIONS   MAY    BE   MONOPOLIES.       579 

tain  buildings  0r  localities.  We  have  seen  that  it  is 
reasonable  to  prohibit  the  prosecution  of  certain  trades 
except  within  a  certain  area,  or  in  certain  public  build- 
ings, owned  and  managed  by  the  State  or  town.  But  the 
same  objection  is  raised,  if  the  State  or  town,  instead  of 
constructing  and  maintaining  these  public  buildings,  au- 
thorizes a  private  individual  or  corporation  to  erect  and 
conduct  them  under  police  regulations.  The  monopoly, 
thus  created,  is  not  any  more  objectionable  on  principle,  be- 
cause it  does  not  interfere  to  any  greater  degree,  or  in  any 
different  way, with  the  liberties  of  others  who  are  prohibited, 
than  the  erection  and  maintenance  of  such  buildings  by  the 
government.  If  the  State  has  the  constitutional  power  to 
prohibit  the  prosecution  of  such  a  trade  in  all  other  build- 
ings, the  prohibition  is  equally  irksome,  whether  the 
buildings  are  owned  by  the  public  or  by  private  individuals  ; 
and  the  grant  of  the  right  to  prosecute  an  otherwise  pro- 
hibited trade  in  the  buildings  of  a  private  individual  or 
corporation  would  create  a  privilege,  and  may  therefore  be 
made  a  monopoly.  If  there  is  any  valid  objection  to  this 
regulation,  it  will  be  found  to  apply  equally  to  all  like 
cases,  whether  the  buildings  in  which  the  trade  is  required 
to  be  conducted  belong  to  the  State  or  private  persons ; 
and  the  regulation  is  unconstitutional,  because  the  prosecu- 
tion of  the  business  anywhere  will  not  produce  any  injury 
to  the  public. 

This  doctrine  has  been  established  and  applied  to  the  case 
of  slaughter-houses.  The  legislature  of  Louisiana  provided 
for  the  erection  by  a  certain  private  corporation  of  slaugh- 
ter-houses on  the  Mississippi,  near  New  Orleans,  to  which 
all  butchers  within  a  certain  area  were  required  to  bring 
their  cattle  for  slaughtering.  The  law  compelled  the  cor- 
poration to  provide  convenient  accommodation  for  all 
butchers,  who  applied,  upon  the  payment  of  a  reasonable 
compensation,  and  the  slaughtering  of  animals  elsewhere 
was  absolutely  interdicted.  Suits  were  brought  to  resist 

§  130 


580  REGULATION  OF  TRADES   AND   OCCUPATIONS. 

the  enforcement  of  the  law,  on  the  ground  that  it  interfered 
with  the  constitutional  rights  of  those  interdicted  and  cre- 
ated a  monopoly,  not  allowed  by  the  constitution.  The 
cases  finally  reached  the  Supreme  Court  of  the  United 
States,  and  the  law  was  declared,  by  a  divided  court,  to  be 
constitutional.  In  delivering  the  opinion  of  the  court  Jus- 
tice Miller  said:  — 

"It  cannot  be  denied  that  the  statute  under  considera- 
tion is  aptly  framed  to  remove  from  the  more  densely 
populated  part  of  the  city  the  noxious  slaughter-houses, 
and  large  and  offensive  collections  of  animals  neces- 
sarily incident  to  the  slaughtering  business  of  a  large  city, 
and  to  locate  them  where  the  convenience,  health  and 
comfort  of  the  people  require  they  shall  be  located.  And 
it  must  be  conceded  that  the  means  adopted  by  the  act  for 
this  purpose  are  appropriate,  are  stringent,  and  effectual. 
But  it  is  said  that,  in  creating  a  corporation  for  this  purpose 
and  conferring  upon  it  exclusive  privileges  — which  it  is  said 
constitute  a  monopoly  —  the  legislature  has  exceeded  its 
power.  If  this  statute  had  imposed  on  the  city  of  New 
Orleans  precisely  the  same  duties,  accompanied  by  the  same 
privileges,  which  it  has  on  the  corporation  which  it  created, 
it  is  believed  that  no  question  would  have  been  raised  as  to 
its  constitutionality.  In  that  case  the  effect  on  the  butch- 
ers' pursuit  of  their  occupation  and  on  the  public  would 
have  been  the  same  as  it  is  now.  Why  cannot  the  legisla- 
ture confer  the  same  powers  on  another  corporation,  created 
for  a  lawful  and  useful  public  object,  that  it  can  on  the 
municipal  corporation  already  existing?  That  wherever  a 
legislature  has  the  right  to  accomplish  a  certain  result,  and 
that  result  is  best  attained  by  means  of  a  corporation,  it 
has  the  right  to  create  such  a  corporation,  and  to  endow  it 
with  the  power  necessary  to  effect  the  desired  and  lawful 
purpose,  seems  hardly  to  admit  of  debate.  The  proposition 
is  ably  discussed  and  affirmed  in  the  case  of  McCulloch  v. 
State  of  Maryland,  in  relation  to  the  power  of  Congress  to 
§  130 


WHAT   ORDINARY   OCCUPATIONS   MAY  BE   MONOPOLIES.      581 

organize  the  Bank  of  the  United  States  to  aid  in  the  fiscal 
operations  of  the  government.     *     *     * 

"Unless,  therefore,  it  can  be  maintained  that  the  exclu- 
sive privileges  granted  by  this  charter  for  the  corporation, 
is  beyond  the  power  of  the  legislature  of  Louisiana,  there 
can  be  no  just  exception  to  the  validity  of  the  statute.  And 
in  this  respect  we  are  not  able  to  see  that  these  privileges 
are  especially  odious  or  objectionable.  The  duty  imposed 
as  a  consideration  for  the  privilege  is  well  defined,  and  its 
enforcement  well  guarded.  The  prices  or  charges  to  be 
made  by  the  company  are  limited  by  the  statute,  and  we 
are  not  advised  that  they  are  on  the  whole  exorbitant  or 
unjust." 

"The  proposition  is,  therefore,  reduced  to  these  terms: 
Can  any  exclusive  privilege  be  granted  to  any  of  its 
citizens,  or  to  a  corporation,  by  the  legislature  of  the 
State?  *  *  * 

"  But  it  is  to  be  observed,  that  all  such  references  are  to 
monopolies  established  by  the  monarch  in  derogation  of 
the  rights  of  the  subjects,  or  arise  out  of  transactions  in 
which  the  people  were  unrepresented  and  their  interests 
uncared  for.  The  great  Case  of  Monopolies,  reported  by 
Coke,  and  so  fully  stated  in  the  brief,  was  undoubtedly  a 
contest  of  the  Commons  against  the  monarch.  The  de- 
cision is  based  upon  the  ground  that  it  was  against  com- 
mon law  and  the  argument  was  aimed  at  the  unlawful 
assumption  of  power  by  the  crown ;  for  whoever  doubted 
the  authority  of  Parliament  to  change  or  modify  the  com- 
mon law?  The  discussion  in  the  House  of  Commons  cited 
from  Macaulay  clearly  establishes  that  the  contest  was  be- 
tween the  crown  and  the  people  represented  in  Parliament. 

"  But  we  think  it  may  be  safely  affirmed  that  the  Parlia- 
ment of  Great  Britain,  representing  the  people  in  their 
legislative  functions,  and  the  legislative  bodies  of  this 
country,  have  from  time  immemorial  to  the  present  day, 
continued  to  grant  persons  and  corporations  privileges  - 

§  130 


582  REGULATION   OF   TRADES   AND   OCCUPATIONS. 

privileges  denied  to  other  citizens  —  privileges  which  come 
within  any  just  definition  of  the  word  monopoly,  as  much 
as  those  now  under  consideration,  and  that  the  power  to  do 
this  has  never  been  questioned  or  denied.  Nor  can  it  be 
truthfully  denied  that  some  of  the  most  useful  and  bene- 
ficial enterprises  set  on  foot  for  the  general  good,  have 
been  made  successful  by  means  of  these  exclusive  rights, 
and  could  only  have  been  conducted  to  success  in  that  way. 

*'  It  may,  therefore,  be  considered  as  established,  that 
the  authority  of  the  legislature  of  Louisiana  to  pass  the 
present  statute  is  ample,  unless  some  restraint  in  the  exer- 
cise of  that  power  be  found  in  the  constitution  of  that 
State,  or  in  the  amendments  to  the  constitution  of  the 
United  States." 

"  The  statute  under  consideration  defines  these  localities, 
and  forbids  slaughtering  in  any  other.  It  does  not,  as  has 
been  asserted,  prevent  the  butcher  from  doing  his  own 
slaughtering.  On  the  contrary,  the  Slaughter-House  Com- 
pany is  required,  under  a  heavy  penalty,  to  permit  any 
person  who  wishes  to  do  so,  to  slaughter  in  their  houses; 
and  they  are  bound  to  make  ample  provision  for  the  con- 
venience of  all  the  slaughtering  for  the  entire  city.  The 
butcher  then  is  still  permitted  to  slaughter,  to  prepare  and 
to  sell  his  own  meats  ;  but  he  is  required  to  slaughter  at  a 
specified  place  and  to  pay  a  reasonable  compensation  for 
the  use  of  the  accommodations  furnished  him  at  that  place. 
The  wisdom  of  the  monopoly  granted  by  the  legislature 
may  be  open  to  question,  but  it  is  difficult  to  see  a  justifi- 
cation for  the  assertion  that  the  butchers  are  deprived  of 
the  right  to  labor  in  their  occupation,  or  the  people  of  their 
daily  service  in  preparing  food,  or  how  this  statute,  with 
the  duties  and  guards  imposed  upon  the  company,  can  be 
said  to  destroy  the  business  of  the  butcher,  or  seriously 
interfere  with  its  pursuit."  1 

1  Opinion  of  J.  Miller  in  Slaughter-House  Cases,  16  Wall.  36.    C.  J. 
Chase  and  JJ.  Field,  Swayne  and  Bradley,  dissent.    In  delivering  his  dis- 
§  130 


WHAT   ORDINARY  OCCUPATIONS   MAY   BE  MONOPOLIES.      583 

This  is  not  the  only  case  in  which  the  right  of  the  govern- 
ment to  create  such  a  monopoly  has  been  sustained.  In 
Iowa,  a  law  was  sustained,  which  granted  to  private  individ- 
uals the  exclusive  right  to  erect  and  maintain  a  public  mar- 
ket in  which  all  vendors  of  fresh  meat  and  vegetables  were 

senting  opinion,  Justice  Field  said:  "  By  the  act  of  Louisiana,  within  the 
three  parishes  named,  a  territory  exceeding  one  thousand  one  hundred 
square  miles,  and  embracing  over  two  hundred  thousand  persons,  every 
man  who  pursues  the  business  of  preparing  animal  food  for  market  must 
take  his  animals  to  the  buildings  of  the  favored  company  and  must  per- 
form his  work  in  them,  and  for  the  use  of  the  buildings  must  pay  a  pre- 
scribed tribute  to  the  company,  and  leave  with  It  a  valuable  portion  of 
each  animal  slaughtered.  Every  man  in  these  parishes  who  has  a  horse 
or  other  animal  for  sale,  must  carry  him  to  the  yards  and  stables  of  the 
company,  and  for  their  use  pay  a  like  tribute.  He  is  not  allowed  to  do 
his  work  in  his  own  buildings  or  take  his  animals  to  his  own  stables,  or 
keep  them  in  his  own  yards,  even  though  they  should  be  erected  in  the 
same  district  as  the  buildings,  stables  and  yards  of  the  company,  and 
that  district  embraces  over  eleven  hundred  square  miles.  The  prohibi- 
tions imposed  by  this  act  upon  butchers  and  dealers  in  cattle  in  these 
parishes,  and  the  special  privileges  conferred  upon  the  favorite  corpora- 
tion, are  similar  in  principle  and  as  odious  in  character  as  the  restrictions 
imposed  in  the  last  century  upon  the  peasantry  in  some  parts  of  France, 
where,  as  says  a  French  writer,  the  peasant  was  prohibited  to  '  hunt  on 
his  own  lands,  to  fish  in  his  own  waters,  to  grind  at  his  own  mill,  to 
cook  at  his  own  oven,  to  dry  his  clothes  on  his  own  machines,  to  whet 
his  instruments  at  his  own  grindstone,  to  make  his  own  wine,  his  oil 
and  his  cider  at  his  own  press,  *  *  *  or  to  sell  his  commodities  at 
the  public  markets.  The  exclusive  right  of  all  these  privileges  was 
vested  in  the  lords  of  the  vicinage.  The  history  of  the  most  execrable 
tyranny  of  ancient  times,'  says  the  same  writer,  « offers  nothing  like 
this.  This  category  of  oppressions  cannot  be  applied  to  a  free  man, 
or  to  the  peasant,  except  in  violation  of  his  rights.' 

"  But  if  the  exclusive  privileges  conferred  upon  the  Louisiana  cor- 
poration be  sustained,  it  is  not  perceived  why  exclusive  privileges  for 
the  construction  and  keeping  of  ovens,  machines,  grindstones,  wine 
presses,  and  for  all  the  numerous  trades  and  pursuits  for  the  prosecu- 
tion of  which  buildings  are  required,  may  not  be  equally  bestowed 
upon  other  corporations  or  private  individuals  and  for  periods  of  in- 
definite duration.  *  *  *  This  equality  of  right,  with  exemption  from 
all  disparaging  and  partial  enactments,  in  the  lawful  pursuits  of  life, 
throughout  the  whole  country,  is  the  distinguishing  privilege  of  citizens 
of  the  United  States.  To  them,  everywhere,  all  pursuits,  all  profes- 
sions, all  avocations,  are  open  without  other  restrictions  than  such  as 

§  130 


584  REGULATION   OF  TRADES   AND   OCCUPATIONS. 

required  to  ply  their  trade.1  And  in  Louisiana  it  was  held 
that,  not  only  may  the  municipality  of  New  Orleans  grant 
to  private  persons  the  exclusive  privilege  of  erecting  and 
maintaining  a  public  market,  in  partnership  with  the  city, 
hut  that  the  city  council  cannot  legislate  in  respect  to  the 
regulation  of  the  markets,  without  consulting  the  partners, 
where  the  regulation  is  likely  to  affect  the  financial  in- 
terest of  the  partnership.2  So,  also,  it  has  been  held  in 
Kansas,  that  a  law  is  not  unconstitutional  which  restricts 
the  sale  of  liquors  to  druggists  and  for  special  purposes.3 
On  the  other  hand,  in  an  early  case  in  New  York,  it  was 
declared  to  be  unconstitutional  to  prohibit  to  persons  in  gen- 
eral the  manufacture  of  pressed  hay  in  the  thickly  settled 

are  imposed  equally  upon  all  others  of  the  same  age,  sex,  and  condi- 
tion. The  State  may  prescribe  such  regulations  for  every  pursuit  and 
calling  of  life  as  will  promote  the  public  health,  secure  the  good  order 
and  advance  the  general  prosperity  of  society,  but  when  once  prescribed, 
the  pursuits  or  calling  must  be  free  to  be  followed  by  every  citizen  who 
is  within  the  conditions  designated,  and  will  conform  to  the  regula- 
tions. This  is  the  fundamental  idea  upon  which  our  institutions  rest, 
and  unless  adhered  to  in  the  legislation  of  the  country  our  govern- 
ment will  be  a  republic  only  in  name.  *  *  * 

"  The  keeping  of  a  slaughter-house  is  part  of,  and  incidental  to, 
the  trade  of  a  butcher  —  one  of  the  ordinary  occupations  of  human 
life.  To  compel  a  butcher,  or  rather  all  the  butchers  of  a  large  city 
and  an  extensive  district,  to  slaughter  their  cattle  in  another  person's 
slaughter-house  and  pay  him  a  toll  therefor,  is  such  a  restriction  upon 
the  trade,  as  materially  to  interfere  with  its  prosecution.  It  is  onerous, 
unreasonable,  arbitrary  and  unjust.  It  has  none  of  the  qualities  of  a 
police  regulation.  If  it  were  really  a  police  regulation,  it  would  un- 
doubtedly be  within  the  power  of  the  legislature.  That  portion  of  the 
act  which  requires  all  slaughter-houses  to  be  located  below  the  city, 
and  to  be  subjected  to  inspection,  etc.,  is  clearly  a  police  regulation. 
That  portion  which  allows  no  one  but  the  favored  company  to  build, 
own,  or  have  slaughter-houses  is  not  a  police  regulation,  and  has  not 
the  faintest  semblance  of  one." 

1  Le  Claire  v.  Davenport,  13  Iowa,  210;  overruling  Davenport  v.  Kelly, 
7  Iowa,  109,  110.    See  the  dissenting  opinion  in  the  latter  case. 

2  New  Orleans  v.  Guillotte,  12  La.  Ann.  818. 

3  Intoxicating  Liquor  Cases,  25  Kan.  751  (37  Am.  Rep.  284)  ;    Koester 
v.  State,  36  Kan.  27.    See  In  re  Ruth,  32  Iowa,  253;  Kohn  v.  Melcher 
(Iowa),  29  F.  433. 

§   130 


WHAT  ORDINARY   OCCUPATIONS   MAY   BE  MONOPOLIES.      585 

parts  of  a  city,  on  account  of  the  danger  of  fire,  and  grant 
to  one  or  more  the  exclusive  privilege  of  engaging  in  that 
business  within  the  prohibited  district.  The  court  says : 

"  If  the  manufacture  of  pressed  hay  within  the  compact 
parts  of  the  city  is  dangerous  in  causing  or  promoting  fires, 
the  common  council  have  the  power  expressly  given  by  their 
charter  to  prevent  the  carrying  on  of  such  manufacture ;  but 
as  all  by-laws  must  be  reasonable,  the  common  council  can 
not  make  a  by-law  which  shall  permit  one  person  to  carry 
on  the  dangerous  business,  and  prohibit  another  who  has 
an  equal  right  from  pursuing  the  same  business."  l 

In  a  case,  parallel  with  the  slaughter-house  cases  of  Louis- 
iana, the  city  of  Chicago  passed  an  ordinance  designating 
certain  buildings  for  slaughtering  all  animals  intended  for 
sale  or  comsumption  in  the  city,  the  owners  of  the  buildings 
being  granted  for  a  specified  period  the  exclusive  privilege 
of  having  all  such  animals  slaughtered  in  their  establish- 
ment, and  exacting  a  certain  fee  from  the  owners  of  ani- 
mals so  slaughtered.  In  passing  upon  the  constitutionality 
of  this  law,  the  Supreme  Court  of  Illinois  pronounced  the 
following  opinion:  "The  charter  authorizes  the  city  au- 
thorities to  license  or  regulate  such  establishments.  When 
that  body  has  made  the  necessary  regulations,  required  for 
the  health  or  comfort  of  the  inhabitants,  all  persons  in- 
clined to  pursue  such  an  occupation  should  have  an  oppor- 
tunity of  conforming  to  such  regulations  ;  otherwise  the  or- 
dinance would  be  unreasonable  and  tend  to  oppression.  Or 
if  they  should  regard  it  for  the  interest  of  the  city  that  such 
establishments  should  be  licensed,  the  ordinance  should  be 
so  framed  that  all  porsons  desiring  it  might  obtain  licenses 
by  conforming  to  the  prescribed  terms  and  regulations  for 
the  government  of  such  business.  We  regard  it  neither  as 
a  regulation  nor  a  license  of  a  business,  to  confine  it  to  one 

D  f  9 

building  or  to  give  it  to  one  individual.     Such  an  action  ia 

1  Mayor  City  of  Hudson  v.  Thome,  7  Paige,  261. 

§  130 


586  REGULATION    OF   TRADES   AND    OCCUPATIONS. 

oppressive,  and  creates  a  monopoly  that  never  could  have 
been  contemplated  by  the  general  assembly.  It  impairs  the 
rights  of  all  other  persons,  and  cuts  them  off  from  a  share 
in  not  only  a  legal,  but  a  necessary  business.  Whether  we 
consider  this  as  an  ordinance  or  a  contract,  it  is  equally 
unauthorized,  as  being  opposed  to  the  rules  governing  the 
adoption  of  municipal  by-laws.  The  principle  of  the 
equality  of  rights  is  violated  by  this  contract.  If  the  com- 
mon council  may  require  all  of  the  animals  for  the  con- 
sumption of  the  city  to  be  slaughtered  in  a  single  building, 
or  on  a  particular  lot,  and  the  owner  be  paid  a  specific  sum 
for  the  privilege,  what  would  prevent  the  making  a  similar 
contract  with  some  other  person  that  all  of  the  vegetables 
or  fruits,  the  flour,  the  groceries,  the  dry  goods,  or  other 
commodities  should  be  sold  on  his  lot  and  he  receive  a 
compensation  for  the  privilege?  We  can  see  no  difference 
in  principle."  1 

This  presentation  of  the  subject  readily  indicates  an 
almost  hopeless  contradiction  of  authorities ;  but  it  seems 
to  be  without  doubt,  that  the  doctrine  laid  down  by  the 
Supreme  Court  of  the  United  States  in  the  Slaughter-house 
Cases  will  ultimately  come  to  be  recognized  as  thecorrect  one. 

§  131.  National,  State  and  municipal  monopolies.  — 
In  preceding  pages  of  this  discussion  of  the  right  to  create 
monopolies,  the  constitutionality  of  the  creation  of  exclu- 
sive franchises  and  monopolies  has  been  chiefly  considered 
from  the  standpoint  of  the  individuals  who  have  been  pro- 
hibited by  law  from  the  prosecution  of  a  lawful  and  natural 
calling  or  business,  because  it  has  been  converted  by 
statute  into  a  more  or  less  exclusive  privilege  and  granted 
as  such  to  a  few  persons  or  corporations.  In  the  case  of 
monopolistic  franchises,  which  necessarily  involve  the  grant 
by  the  government  of  a  peculiar  or  extraordinary  privilege 

1  City  of  Chicago  v.  Rumpff,  45  111.  90. 
§  131 


I 


NATIONAL,    STATE   AND   MUNICIPAL   MONOPOLIES.         587 

or  power,  before  the  business  can  be  successfully  estab- 
lished or  conducted,  and  without  which  no  individual  could 
undertake  it,  however  resourceful  he  may  be;  there  can 
be  very  little  doubt  that  no  one's  personal  liberty  has  been 
particularly  restrained  by  the  grant  of  such  a  franchise  as 
a  special  privilege  to  a  few  persons  or  corporations;  or 
even  when  it  is  granted  as  an  exclusive  monopoly  to  one 
person  or  corporation.  No  one's  constitutional  right  to 
pursue  any  lawful  calling  has  been  infringed  by  the  grant 
of  an  exclusive  right  to  build  and  maintain  a  railway  be- 
tween two  termini,  or  a  street  railway  along  a  certain  street 
or  avenue  of  a  city.  Nor,  as  it  has  also  been  argued,  has 
any  man's  constitutional  right  to  pursue  any  lawful  calling 
been  violated  by  the  grant  to  a  few  persons  or  corpora- 
tions, or  even  to  one,  the  exclusive  right  to  carry  on  a 
business,  however  natural  and  ordinary  it  may  be,  which,  — 
because  it  is  inherently  and  necessarily  injurious  to  the 
welfare  of  society,  or  dangerous  to  individuals,  when  left 
open  to  the  unrestricted  competition  of  individuals,  — 
may  be  prohibited  altogether.  If  total  prohibition  of  a 
trade  or  business  is  constitutionally  justifiable,  certainly 
the  constitutional  rights  of  the  individuals  who  are  denied 
the  privilege  of  carrying  on  such  a  business,  are  not  more 
seriously  interfered  with,  if,  instead  of  prohibiting  the 
trade  altogether,  the  legislature  were  to  grant  the  more  or 
less  exclusive  privilege  of  carrying  on  the  prohibitable 
business  to  a  few  persons  or  corporations,  under  more  or 
less  strict  police  supervision. 

But,  conceding  the  soundness  of  these  propositions  of 
constitutional  law,  the  question  still  remains  to  be  asked 
and  answered  :  Does  not  the  grant  of  exclusive  or  monopo- 
listic privileges  to  a  few  persons  or  private  corporations, 
even  in  the  apparently  necessary  and  justifiable  cases, 
which  I  have  just  described,  conflict  with  our  constitutional 
declarations  of  equality  of  all  men  before  the  law,  and 
with  our  guaranty  to  all  of  equal  privileges  and  immuni- 

§  131 


588  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

tie*?  Is  it  a  sufficient  answer  to  such  a  question  to  say, 
that  public  interests  forbid  that  any  and  every  man,  who 
wants  to  and  has  the  necessary  capital,  should  be  permitted 
to  construct  a  railroad,  a  street  railway,  a  gas,  electric 
light,  water,  telegraph  or  telephone  plant;  that,  on  the 
other  hand,  these  conveniences  are  public  necessities,  and 
that  there  is  no  alternative  but  to  make  more  or  less  exclu- 
sive monopolies  of  them  ?  Granted  that  individuals  cannot 
be  allowed  indiscriminately,  and  without  restraint,  to  exer- 
cise the  right  of  eminent  domain  and  to  tear  up  the  streets 
of  a  city  in  order  to  lay  down  conduit  pipes  and  tracks ;  it 
does  not  necessarily  follow  that  the  right  to  do  these  things 
should  be  granted  as  a  private  monopoly  to  a  few  persons 
or  corporations.  If  there  was  no  other  alternative  to  the 
creation  of  such  private  monopolies  but  the  denial  of  these 
conveniences  and  necessities  to  the  people,  it  might  be 
excusable  to  ignore  the  patent  and  unmistakable  repug- 
nance to  our  constitutional  principle  of  the  grant  of  such 
exclusive  privileges.  But  there  is  another  alternative. 
That  is,  that  whatever  business  or  calling  cannot  be  opened 
to  the  free  choice  of  all  persons  without  favor  or  dis- 
crimination,—  subject  only  to  reasonable  regulations  for 
the  protection  of  the  public  and  of  individuals  against 
fraud  and  other  wrongs  and  dangers  —  should  and  can  be 
made  a  government  monopoly,  instead  of  being  granted  to 
private  individuals  and  corporations. 

Whatever  arguments  may  be  advanced  in  opposition, 
there  can  be  no  doubt  of  the  existence  of  a  most  marked 
tendency  all  over  this  country  to  convert  into  government 
monopolies  every  public  franchise,  which  serves  to  satisfy 
some  public  want.  The  cities  have  almost  universally  con- 
structed their  own  water  works ;  and  many  own  and  con- 
duct the  gas  works  and  electric  light  plants,  for  the  supply 
of  these  necessities  to  private  consumers,  as  well  as  for 
public  use.  The  city  of  New  York  owns  and  manages  a 
large  number  of  the  docks,  has  for  years  run  the  cable  cars 
§  131 


NATIONAL,    STATE    AND    MUNICIPAL    MONOPOLIES.         589 

on  the  Brooklyn  Bridge  ;  and  has  just  concluded  (February, 
1900)  a  contract  for  the  construction  of  a  railroad  tunnel 
in  Manhattan  and  Bronx  Boroughs,  to  furnish  rapid  transit 
to  the  people  of  the  city.  And  while  the  city  does  not  now 
contemplate  the  conduct  of  this  tunnel  road  by  city  officials, 
no  question  has  ever  been  raised  as  to  its  power  to  do  so, 
of  that  policy  were  deemed  to  be  the  wisest. 

I  believe  the  decisions,  to  which  I  will  now  refer,  will 
afford  a  very  clear  delimitation  of  those  businesses  which 
can  be,  and  of  those  which  cannot  be,  converted  into  gov- 
ernment monopolies.  I  will  first  refer  to  the  cases  in 
which  the  power  of  a  municipality  to  engage  in  these  en- 
terprises is  explained  and  set  forth ;  because  of  the  adop- 
tion at  an  early  day  of  what  must  now  in  the  light  of  recent 
decisions  be  classed  among  the  fictions  of  the  law,  of  the 
proposition  that  the  municipal  corporation  has  both  a  pub- 
lic and  a  quasi-private  character,  and  that  it  may  in  the 
latter  character  lawfully,  when  empowered  by  its  char- 
ter, engage  in  the  so-called  private  business  of  vending 
to  private  consumers  water  and  light,  and  of  furnishing 
the  private  services  of  transportation  and  communication 
by  telegraph  and  telephone.  Elsewhere  1 1  state  this  fiction 
of  the  law  as  follows :  — 

But  in  determining  the  constitutionality  of  government 
monopolies,  a  very  important  distinction  must  be  made  be- 
tween the  monopolies,  which  may  be  established  and  op- 
erated by  the  State  government,  and  those  which  may, 
under  legislative  authority,  be  erected  by  a  municipal  cor- 
poration. The  distinction  rests  upon  the  generally  ac- 
cepted doctrine,  that  a  municipal  corporation  has  a  quasi- 
private  character,  as  well  as  a  strictly  public  character. 
The  grant  by  the  State  to  a  municipal  corporation  of  the 
power  to  establish  and  operate  gas,  electric  light  or  water 
works,  is  a  grant  to  the  corporation  in  its  semi-private 

1  Tiedeman  Municipal  Corporations,  §  144a. 

§  131 


590  REGULATION  OF  TRADES   AND   OCCUPATIONS. 

character  as  the  corporate  representative  of  the  local  com- 
munity, and  not  to  it  as  the  public  representative  of  the 
State  government.1 

Fifty  years  or  more  ago  the  principles  of  individualism 
exerted  over  the  political  thought  of  this  country  a  far 
more  powerful  and  universal  influence  than  they  do  now. 
And  if  it  had  been  proposed  in  those  days  that  a  city  gov- 
ernment should  assume  the  monopoly  of  supplying  its  in- 
habitants with  gas  or  water,  the  judicial  veto  would  have 
been  both  decisive  and  general,  that  the  government  of  the 
municipal  corporation  was  only  a  local  branch  of  the  State 
government ;  and  that  it  was  not  one  of  the  functions  of 
the  government,  either  State,  county  or  municipal,  to  en- 
gage in  the  private  business  of  vending  water  or  light 
to  private  consumers.  And  only  recently  has  the 
Supreme  Court  of  South  Carolina  held  it  to  be 
an  irrepealable  limitation  of  the  functions  of  munic- 
ipal government.2  But  the  popular  demand  for  the  em- 
barkation of  municipal  corporations  in  these  enterprises  of 
general  utility  gradually  became  stronger  and  stronger, 
until  it  became  irresistible.  Then  the  courts  conceived  of 
this  fictional  distinction  between  municipal  and  State  gov- 
ernments, as  a  means  of  avoiding  the  shock  to  public 
opinion,  which  would  be  occasioned  by  the  thought  that  the 
municipalization  of  such  enterprises  would  inevitably  lead 
to  State  socialism.  Under  the  influence  of  this  fiction,  and 
of  the  argument  that  the  supply  of  these  general  necessi- 
ties, such  as  light  and  water,  is  the  performance  of  a  public 
act,  and  not  an  engagement  of  the  municipal  corporation  in 
a  private  business,  the  courts  have,  in  all  of  the  cases,  with 
the  exception  of  the  South  Carolina  case  just  cited,3  declared 

1  See  also  Tiedeman's  Municipal  Corporations,  §  9. 

2  Mauldin  v.  City  Council  of  Greenville,  33  S.  C.  1. 

3  Since  the  rendition  of  that  decision,  cities  have  been  expressly 
authorized  by  a  provision  of  the  South  Carolina  constitution  to  erect  and 
maintain  water  and  electric  light  works. 

§  131 


NATIONAL,    STATE   AND   MUNICIPAL   MONOPOLIES.        591 

it  to  be  within  the  constitutional  power  of  the  legislature  to 
authorize  cities  and  towns  to  erect  and  maintain  plants  for 
supplying  private  consumers  with  water  and  light.1  In 
the  case  of  Smith  v.  City  of  Nashville,2  the  court  said: 
"  Nothing  should  be  of  greater  concern  to  a  municipal  cor- 
poration than  the  preservation  of  the  good  health  of  the 
inhabitants.  Nothing  can  be  more  conducive  to  that  end 
than  a  regular  and  sufficient  supply  of  wholesome  water, 
which  common  observation  teaches  all  can  be  furnished  in 
populous  cities  only  through  the  instrumentality  of  well- 
equipped  water  works.  Hence,  for  a  city  to  meet  such  a  de- 
mand is  to  perform  a  public  act  and  confer  a  public  blessing. 
*  *  *  It  cannot  be  held  that  the  city  in  doing  so  is  en- 
gaging in  a  private  enterprise,  or  performing  a  municipal 
function  for  a  private  end."  And  in  reference  to  the 
establishment  and  operation  by  cities  of  gas  and  electric 
light  works,  the  Supreme  Court  of  Massachusetts  3  said  in 
part :  — 

"  We  have  no  doubt,  that  if  the  furnishing  of  gas  and 
electricity  for  illuminating  purposes  is  a  public  service,  the 
performance  of  this  service  can  be  delegated  by  the  legis- 
lature to  cities  and  towns  for  the  benefit  of  themselves  and 
their  inhabitants  and  that  such  cities  and  towns  can  be 
authorized  to  impose  taxes  for  this  purpose  upon  their  in- 
habitants and  to  establish  reasonable  rates  which  the  inhabit- 
ants who  use  the  gas  or  elestricity  can  be  compelled  to 
pay.  The  fundamental  question  is,  whether  the  manufac- 

i  In  re  Rochester  Water  Works,  66  N.  Y.  413;  Dayton  ».  Quigley,  29 
N.  J.  Eq.  77;  Atlantic  City  Water  Works  o.  Atlantic  City,  39  N.  J.  Eq. 
367;  Thompson- Houston  Electric  Co.  v.  Newton,  42  Fed.  723;  Hale 
Houghton,  8  Mich.  451;  City  of  Crawfordsville  v.  Braden,  130  Ind.  149; 
Smith  v.  Mayor,  etc.,  City  of  Nashville,  88  Tenn.  464;  State  v.  C 
Hiawatha,  63  Kans.  477;    Springfield  v.  Fullmer,  7  Utah,  4, 
677)  ;  Opinion  of  Justices,  150  Mass.  592. 

a  88  Tenn.  464. 

8  Opinion  of  Justices,  150  Mass.  692. 

§  131 


592  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

ture  and  distribution  of  gas  or  electricity  to  be  used  by 
cities  and  towns  for  illuminating  purposes  is  a  public  ser- 
vice.'* *  *  *  "  Artificial  light  is  not,  perhaps,  so  ab- 
solutely necessary  as  water,  but  it  is  necessary  for  the 
comfortable  living  of  every  person.  Although  artificial 
light  can  be  supplied  in  other  ways  than  by  the  use  of  gas 
or  electricity,  yet  the  use  of  one  or  both  for  lighting  cities 
and  thickly  settled  towns  is  common,  and  has  been  found 
to  be  of  great  convenience,  and  it  is  practically  impossible 
for  every  individual  to  manufacture  gas  or  electricity  for 
himself.  If  gas  or  electricity  is  to  be  generally  used  in  a 
city  or  town,  it  must  be  furnished  by  private  companies  or 
by  the  municipality,  and  it  cannot  be  distributed  without 
the  use  of  the  public  streets  or  the  exercise  of  the  right  of 
eminent  domain." 

The  court  reserved  the  question  whether  the  legislature 
could  authorize  cities  and  towns  to  furnish  gas  and  electric- 

o 

ity  for  heat  and  power,  evidently  ignoring  the  real  reason 
for  the  public  supply  of  these  things,  viz. :  that  all  of  these 
wants  can  only  be  supplied  by  the  grant,  by  the  legislature, 
to  the  municipal  or  private  corporation,  as  the  case  may  be, 
of  the  monopolistic  privilege  of  eminent  domain,  or  of  the 
extraordinary  use  of  the  streets  and  highways  for  the  lay- 
ing of  conduit  pipes  and  wires.  All  of  these  public  and 
general  utilities  contain  that  same  feature.  And  I  do  not 
hesitate  to  assert  that  whenever  the  special  grant  of  a 
franchise  or  privilege  is  necessary  to  the  prosecution  of  a 
business,  such  business  can  and  should  be  made  a  State  or 
municipal  monopoly  as  the  case  may  be,  instead  of  a  private 
monopoly  in  the  hands  of  a  private  individual  or  corpora- 
tion. 

But,  whenever  the  legislature  authorizes  a  city  to  engage 
in  a  business,  the  prosecution  of  which  does  not  require 
the  ownership  of  any  such  peculiar  and  restricted  privi- 
lege or  franchise,  and  does  not  involve  any  danger  to  the 
§  131 


NATIONAL,    STATE   AND    MUNICIPAL    MONOPOLIES.          593 

public,  the  liberty  of  the  individual,  to  pursue  a  lawful 
calling,  is  thereby  infringed,  if  the  business  is  made  a 
municipal  monopoly;  and  in  any  case,  the  city  is  assuming 
a  private  function,  which  the  legislature  cannot  constitution- 
ally confer.  Thus,  in  a  recent  case,1  it  was  held  by  a  major- 
ity of  the  Supreme  Court  of  Massachusetts  that  the  legisla- 
ture has  not  the  power,  under  the  constitution,  to  authorize 
the  cities  and  towns  within  the  commonwealth  to  buy  coal 
and  wood  for  the  purpose  of  sale  to  their  inhabitants  for 
fuel,  or  to  engage  in  any  trade  merely  that  it  maybe  better 
carried  on.  But  Mr.  Justice  Holmes  in  a  dissenting  opinion 
says  :  "  I  am  of  the  opinion  that  when  money  is  taken  to 
enable  a  public  body  to  offer  to  the  public  without  discrim- 
ination an  article  of  general  necessity,  the  purpose  is  no 
less  public  when  that  article  is  wood  or  coal,  than  when  it 
is  water  or  gas  or  electricity,  or  education,  to  say  nothing 
of  cases  like  the  support  of  paupers  or  the  taking  of  land 
for  railroads  or  public  markets.  I  see  no  ground  for  deny- 
ing the  power  of  the  legislature  to  enact  the  laws  men- 
tioned in  the  questions  proposed."  Mr.  Justice  Barker 
occupies  a  middle  ground  in  this  case  between  the  opinion 
of  the  majority  of  the  court  and  that  of  Justice  Holme*, 
and  holds  that  the  test  in  all  of  these  cases  is  whether  the 
necessities  of  society,  as  now  organized,  can  only  be  met 
by  the  engagement  of  the  city  government  in  the  par- 
ticular business.  The  objection  to  Justice  Barker's  state- 
ment of  the  limitation  in  this  regard  of  the  power  of  the 
legislature  is  that  it  is  too  vague  to  furnish  a  reasonable 
and  satisfactory  restraint  upon  the  growing  demands  of 
the  day  for  the  embarkation  of  government  in  businesses, 
which  have  heretofore  been  left  to  private  initiative  and 
enterprise. 

On  the  other  hand,  it  has  been  held  that,  in  the  regula- 

1  Opinion  of  Justices,  155  Mass.  598. 

38  §    131 


594  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

tioD  of  the  trade  in  intoxicating  liquors,  a  law  providing 
for  the  exclusive  sale  of  such  liquors  by  agents  of  the  town 
was  constitutional.1  If  the  courts  did  not  unanimously 
reject  the  contention,  which  is  so  earnestly  presented 
in  a  preceding  section3  that  the  total  prohibition  of 
the  sale  of  intoxicating  liquors  is  unconstitutional,  the 
establishment  of  a  municipal  monopoly  in  the  sale 
of  liquors  would  be  in  the  same  category  with  the 
Massachusetts  provision  for  the  sale  by  the  town  to 
private  consumers  of  wood  and  coal,  which  was  held  to  be 
an  unconstitutional  extension  of  the  functions  of  municipal 
government.  But  having  declared  that  the  liquor  trade 
was  so  inherently  injurious  to  the  public  interests,  when 
left  to  unrestricted  enterprise,  as  to  justify  constitutionally 
the  total  prohibition  of  the  trade,  the  co'urts  could  not  con- 
sistently deny  the  right  of  the  legislature  to  convert  it  into 
a  municipal  monopoly ;  unless  the  doctrine  was  upheld  that 
governmental  functions  could  not  be  extended  to  include 
the  satisfaction  of  any  wants  of  the  individual ;  a  doctrine 
which,  as  has  been  seen,  has  been  repudiated  by  the  courts. 
So  far  I  have  confined  myself  to  the  consideration  of  the 
cases  of  government  monopoly  and  engagement  in  what 
have  heretofore  been  characterized  as  private  businesses,  in 
which  city  governments  have  been  authorized  by  their  char- 
ters or  by  special  statutes  to  thus  extend  their  functions ;  in 
deference  to  the  opinion  which  has  been  expressed  by  the 
courts,  that  in  this  connection  a  distinction  is  properly 
made  between  city  governments  and  the  State  or  county 
governments  ;  on  the  theory,  already  stated,  that  cities,  as 
incorporated  bodies,  have  a  public  and  a  quasi-private 
character,  and  that  the  city  exercises  the  extraordinary 
function  of  vending  water  or  light  to  private  consumers  in 

1  State  v.  Brennan's  Liquors,  25  Conn.  278.     See  post,  current  section 
the  discussion  of  the  South  Carolina  Dispensary  law. 

2  §  126. 

§   131 


NATIONAL,    STATE    AND    MUNICIPAL    MONOPOLIES.          595 

its  quasi-private  and  not  in  its  public  character.  However 
sound  this  theory  of  the  dual  character  of  municipal  cor- 
poration may  be,  in  connection  with  the  claims  of  credit- 
ors, and  the  right  of  the  courts  to  compel  the  city  to  pay 
its  debts;  it  seems  tome  to  be  incontrovertible  that,  in 
prohibiting  a  trade  to  private  individuals  and  converting  it 
into  a  municipal  monopoly,  the  city  is  exercising  a  func- 
tion of  government,  and  is  therefore  acting  in  its  public 
character,  as  a  local  branch  of  the  State  government.  If 
the  State  legislature  may  authorize  a  city  to  create  munic- 
ipal monopolies  out  of  water  works,  gas  and  electric  light 
plants,  street  railways,  liquor  trade,  etc.,  without  violat- 
ing any  provision  of  the  State  constitution;  the  legislature 
may  equally  establish  these  and  kindred  businesses  as 
State  government  monopolies,  unless  the  State  constitution 
contains  some  provision,  which  distinguishes  in  such 
matters  between  the  functions  of  State  and  municipal 
governments. 

The  same  rule  would  apply  to  the  scope  of  power  of  the 
national  government,  so  far  as  its  jurisdiction  extends  over 
the  subjects  of  police  power.  So  far  as  there  have  been 
adjudications  on  the  subject,  the  contentions  of  the  text 
have  been  fully  sustained  by  the  courts. 

Up  to  the  present  time,  there  have  been  only  two  cases 
in  which  government  monopolies  have  been  established, 
outside  of  the  municipal  monopolies,  and  which  have  been 
sustained  by  the  courts.  And  these  are  (1)  the  transport- 
ation and  distribution  of  the  mails  by  the  United  States 
officials  and  (2)  the  sale  of  intoxicating  liquors  by  the 
officers  of  the  State  of  South  Carolina. 

The  right  of  the  national  government  to  make  an  exclu- 
sive government  monopoly  of  the  postal  service  has  never 
been  questioned  in  any  judicial  proceeding.  The  univer- 
1  sality  of  this  government  monopoly,  throughout  the  civilized 
world,  would,  according  to  the  principle  of  constitutional 

§  131 


596  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

construction,  adopted  in  the  case  of  Juillard  v.  Greeman,1 
have  been  a  complete  answer  to  any  question  of  the  con- 
stitutional power  of  the  national  government  to  establish 
post  offices  and  post  roads ;  even  if  the  United  States  con- 
stitution had  not  expressly  authorized  the  national  govern- 
ernment  to  establish  and  maintain  them  as  government 
monopolies. 

If  a  political  party  were  to  go  before  the  people  on  the 
declaration,  that  it  proposes,  if  successful  at  the  polls,  to 
convert  all  the  railroads  and  telegraph  lines  into  govern- 
ment monopolies,  to  buy  under  condemnation  proceedings 
the  existing  lines  of  railroad  and  telegraph,  or  establish 
new  ones,  and  prohibit  the  existing  railroad  and  telegraph 
companies  from  conducting  their  respective  businesses ;  an 
intense  excitement  would  prevail  all  over  the  country. 
Apart  from  the  economic  objections,  which  would  be  urged 
against  the  program,  many  would  feel  that  the  government 
would  thereby  intrench  upon  the  fields  of  private  enter- 
prise, without  constitutional  authority.  But  if  it  is  lawful 
for  the  government  to  establish  and  maintain  a  postal  ser- 
vice as  an  exclusive  government  monopoly,  there  can  be  no 
legal  or  scientific  objection  to  the  conversion  of  the  rail- 
roads and  the  telegraph  or  telephone  service  into  govern- 
ment monopolies.  The  same  reasons  which  justify  the 
post-office  monopoly  would  be  sufficient  to  justify  these. 
They  are  all  common  means,  now  made,  by  the  exigencies 
of  modern  life,  necessary  means  of  intercourse  and  inter- 
communication among  people  of  the  same  and  of  different 
countries,  and  might  very  properly  be  compared  with  the 

1  110  U.  S.  421;  the  principle  is,  that  the  government  may  exercise 
any  power,  which  was  commonly  recognized  as  a  function  of  govern- 
ment by  the  civilized  nations  of  the  last  century,  unless  it  was  prohibited 
by  the  constitution.  See  ante,  §  91,  for  a  full  discussion  of  the  case, 
and  post,  §  215,  for  a  fuller  and  more  accurate  statement  and  discussion 
of  the  principle  of  constitutional  construction. 

§  131 


NATIONAL,    STATE    AND    MUNICIPAL    MONOPOLIES.         597 

governmental  control  of  the  public  highways  on  land  and 
on  water.  Then  again,  these  means  of  communication  are 
so  necessary  to  the  prosecution  of  the  trade  and  commerce 
of  the  world,  that  any  interruption  of  them  by  disputes  of 
the  railroads  and  telegraph  lines  with  their  employees  over 
wages  and  terms  of  hiring  or  with  the  shippers  of  goods 
and  travelers  over  rates  of  charges,  would  be  and  have 
been  often  a  serious  menace  to  the  public  welfare. 
Whatever  serious  doubts  may  be  entertained  con- 
cerning the  political  propriety  of  such  govern- 
ment monopolies;  in  these  days  of  labor  agitation 
and  gigantic  railroad  and  telegraph  combinations,  and 
in  the  face  of  the  charges  of  extortion  of  these  combi- 
nations, alike  toward  patrons  and  employees  j1  when  a  strike 
of  railroad  and  telegraph  employees  may  extend  over  the 
whole  country,  stop  the  wheels  of  commerce  and  bring  all 
commercial  intercourse  to  an  end,  as  long  as  the  disagree- 
ment continues,  public  opinion  may  not,  after  a  thoughtful 
consideration  of  these  things,  reject  the  proposition.  Cer- 
tainly, the  courts  would  not  deny  to  the  national  govern- 
ment the  power  thus  to  extend  the  scope  of  its  functions. 
No  private  corporation  or  syndicate  of  capitalists  should 
be  vested  with  the  ownership  and  control  of  any  of  the 
means  of  intercourse  or  communication  of  people  with 
each  other.  Apart  from  the  opportunities  for  the  practice 
of  extortion,  which  the  private  ownership  of  such  means 
of  communication  affords,  the  grant  of  them  to  private 
corporations  is  a  violation  of  the  constitutional  guaranty  of 
equal  privileges  and  immunities.  The  United  States  Su- 
preme Court  has  declared,  in  two  cases,2  that  it  would  be 
lawful  for  Congress  to  make  government  monopolies  of  the 

1  I  do  not  wish  to    be  considered  as  giving  a  full  and  unqualified 
sanction  to  these  charges. 

2  Pensacola  &c.  R.  R.  Co.  v.  West.  Union  Tel.  Co.,  96  U.  S.  1 ;  State 
of  California  v.  Central  Pac.  Ry.  Co.,  127  U.  S.  1. 

§  131 


598  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

railroad  and  the  telegraph,  to  construct  the  same  anew  or 
to  appropriate  to  its  use,  in  the  exercise  of  the  right  of 
eminent  domain,  the  existing  lines  of  railroad  and  telegraph. 
This  was  only  a  dictum,  but  it  may  be  taken  as  a  reliable 
forecast  of  what  the  decision  of  that  court  would  be  if  the 
question  should  ever  come  before  it.1 

The  South  Carolina  Dispensary  Law  has  not  only  been 
the  occasion  of  a  great  deal  of  bitter  political  animosity 
within  the  State,  but  it  has  also  provoked  a  widespread 
discussion  throughout  the  country,  in  the  public  press,  as 
well  as  in  the  legal  journals,  over  this  extension  of  the 
functions  of  government.  Briefly  stated,  the  dispensary 
law,  so-called,  prohibits  all  private  trade  in  intoxicating 
liquors  within  the  State  of  South  Carolina,  and  provides 
for  its  sale  by  officials  of  the  State  government,  under  strict 
regulations  as  to  the  amounts  to  be  sold,  and  expressly 
forbidding  all  drinking  at  the  place  of  sale.  This  was  a 
clear  establishment  in  the  sale  of  intoxicating  liquors  of  a 
government  monopoly.  And,  naturally,  the  private  liquor 
dealers  of  the  State  sought  to  secure  the  nullification  of 
this  law,  aided  and  abetted  by  the  strong  political  acrimony 
which  the  political  divisions  of  recent  years  have  engen- 
dered in  that  State.  The  result  of  the  first  case  was  a 
pronouncement  of  the  unconstitutionality  of  the  law,  in  an 
able  opinion  from  Chief  Justice  Mclver.2  Chief  Justice 
Mclver  said  in  part :  — 

"  But  it  is  earnestly  contended  by  the  attorney-general 

1  In  State  v.  City  of  Charleston,  10  Rich.  L.  (S.  C.)  491,  Mr.  Justice 
O'Neall  said:  "  That  the  general  assembly  have  all  the  powers  which  the 
corporation  (City  of  Charleston)  have  exercised  in  their  corporation  and 
for  the  whole  State,  I  have  no  doubt.    If  they  (the  general  assembly), 
thought  proper,  they  could  build  a  railroad  with  just  as  much  propriety 
as  a  granite  State  house.    Both  might  lead  to  an  extravagent  waste  of 
money,  but  still  the  power  cannot  be  questioned.    They  have  dug  canals, 
and  built  roads,  and  I  have  no  doubt  they  will  do  so  again." 

2  McCullough  v.  Brown,  41  S.  C.  220. 

§  131 


NATIONAL,    STATE    AND    MUNICIPAL    MONOPOLIES.         599 

that  if  the  power  to  prohibit  absolutely  the  sale  of  intoxi- 
cating liquors  be  conceded,  it  follows  necessarily  that  the 
State  may  assume  the  monopoly  of  such  a  trade;  and  in 
support  of  this  view  he  cites  Tiedeman  on  the  Limitations 
of  the  Police  Power  (page  318),  where  that  author  uses 
the  following  language:  'There  is  no  doubt  that  a  trade 
or  occupation  which  is  inherently  and  necessarily  injurious 
to  society  may  be  prohibited  altogether ;  and  it  does  not 
seem  to  be  questioned  that  the  prosecution  of  such  a  busi- 
ness may  be  assumed  by  the  government,  and  managed  by 
it  as  a  monopoly.'  But  the  only  authority  which  the 
author  cites  to  sustain  this  rather  extraordinary  proposition 
is  the  case  of  State  v.  Brennan's  Liquors,  25  Conn.  278, 
overlooking  entirely  the  case  of  Beebe  v.  State,  6  Ind. 
503,  which  holds  an  opposite  view,  and  which  had  been 
previously  cited  by  the  same  author  at  page  197,  and 
quoted  from,  apparently  with  approval ;  but,  in  addition 
to  this,  we  are  unable  to  perceive  how  the  right  to  prohibit 
a  given  traffic  carries  with  it  the  power  in  the  State  to  as- 
sume the  monopoly  of  such  traffic.  If  the  right  to  pro- 
hibit the  sale  of  intoxicating  liquors  rests  upon  the  ground 
that  such  a  traffic  «  is  inherently  and  necessarily  injuri- 
ous to  society,' 1  as  is  involved  in  the  statement  by  the 
author  of  this  proposition,  then  it  seems  to  us  that  the 
logical  and  necessary  consequence  would  be  that  the  State 
could  not  engage  in  such  traffic,  for  otherwise  we  should  be 
compelled  to  admit  the  absurd  proposition  that  a  State 
government  established  for  the  very  purpose  of  protecting 
society  could  lawfully  engage  in  a  business  which  •  is  in- 
herently and  necessarily  injurious  to  society.'  We  must 
prefer,  then,  to  follow  the  case  of  Beebe  v.  State,  rather 

1  In  the  present  edition,  this  clause  is  qualified  so  as  to  read:  "  There 
is  no  doubt  that  a  trade  or  occupation,  which  is  inherently  and  neces- 
sarily injurious  to  society,  when  it  is  unrestricted  and  left  open  to  private 

enterprise,"  etc. 

§  131 


600  REGULATION    OF   TRADES    AND    OCCUPATIONS. 

than  State  v.  Brennan's  Liquors;  for  while  it  has  been 
said  that  the  case  of  Beebe  v.  State  has  been  overruled 
(though  the  case  to  that  effect  has  not  been  brought  to  our 
attention),  yet  we  do  not  cite  the  case  as  authority,  for  it 
is  not  authority  here,  but  it  is  only  referred  to  for  the  rea- 
soning contained  in  the  opinion.  Indeed,  neither  the  In- 
diana nor  the  Connecticut  case  could  constitute  authority 
in  this  case,  for  the  reason  that  the  statute  which  we  are 
called  upon  to  construe  contains  very  different  provisions 
from  those  found  either  in  the  Indiana  or  Connecticut 
statutes.  But  in  this  connection  we  are  enabled  to  cite  a 
very  recent  case,  which  the  research  of  counsel  for  re- 
spondents has  furnished  us  with,  which,  it  seems  to  us,  is 
as  conclusive  of  this  whole  matter  as  any  case  from  abroad 
can  be.  That  is  the  case  of  Rippe  v.  Becker  (Minn.)  57 
N.  W.  331,  in  which  one  of  the  points  distinctly  decided  is 
thus  stated  in  the  syllabus,  prepared  by  the  court :  '  The 
police  power  of  the  State  to  regulate  a  business  is  to  be  exer- 
cised by  the  adoption  of  rules  and  regulations  as  to  the 
manner  in  which  it  shall  be  conducted  by  others,  and  not 
by  itself  engaging  in  it.'  In  that  case  the  question  was 
as  to  the  constitutionality  of  an  act  entitled  *  An  act  to 
provide  for  the  purchase  of  a  site  and  for  the  erection  of  a 
State  elevator  or  warehouse  at  Duluth  for  public  storage 
of  grain,'  and  one  of  the  grounds  upon  which  it  was 
sought  to  sustain  the  constitutionality  of  the  act  was  that 
it  was  an  exercise  of  the  police  power.  But  the  court 
held  that,  while  '  the  right  of  the  State,  in  the  exercise  of 
its  police  power,  to  regulate  the  business  of  receiving, 
weighing,  inspecting,  and  storing  grain  in  elevators  and 
warehouses,  as  being  a  business  affected  with  a  public  in- 
terest, is  now  settled  beyond  all  controversy '  by  the  case 
of  Munn  v.  Illinois,  94  U.  S.  113,  and  others  on 
the  same  line,  yet  *that  the  act  there  in  question  could 
not  be  regarded  as  a  police  regulation  of  the  business,  and 
§  131 


NATIONAL,    STATE    AND    MUNICIPAL    MONOPOLIES.         601 

that  the  police  power  of  the  State  to  regulate  a  business 
does  not  include  the  power  to  engage  in  carrying  it  on.'  It 
would  extend  this  opinion  to  an  unwarrantable  length  to 
make  further  quotations  from  the  opinion  of  the  court  in 
that  case,  which  might  be  instructive  and  profitable.  It 
seems  to  us,  therefore,  that  in  no  view  of  the  case  can  the 
dispensary  act  be  regarded  as  a  police  regulation  of  the 
business  of  selling  intoxicating  liquors,  and,  even  if  it  could 
be,  that  such  police  power  does  not  include  the  power  on 
the  part  of  the  State  to  engage  in  carrying  on  such  business. 
"Finally,  the  constitutionality  of  the  dispensary  act  is 
assailed  upon  the  ground  that  the  legislature  have  under- 
taken thereby  to  embark  the  State  in  a  trading  enterprise, 
which  they  have  no  constitutional  authority  to  do ;  not 
because  there  is  any  express  prohibition  to  that  effect  in 
the  constitution,  but  because  it  is  utterly  at  variance  with 
the  very  idea  of  civil  government,  the  establishment  of 
which  was  the  expressly  declared  purpose  for  which  the 
people  adopted  their  constitution  ;  and  therefore  all  the 
powers  conferred  by  that  instrument  upon  the  various  de- 
partments of  the  government  must  necessarily  be  regarded 
as  limited  by  that  declared  purpose.  Hence  when,  by  the 
first  section  of  the  second  article  of  the  constitution,  the 
legislative  power  w.is  conferred  upon  the  general  assembly, 
the  language  there  used  cannot  be  construed  as  confc-rring 
upon  the  general  assembly  the  unlimited  power  of  legis- 
lating upon  any  subject,  or  for  any  purpose,  according  to 
its  unrestricted  will,  but  must  be  construed  as  limited  to 
such  legislation  as  may  be  necessary  or  appropriate  to  the 
real  and  only  purpose  for  which  the  constitution  wan 
adopted,  to  wit,  the  formation  of  a  civil  government.  In 
this  connection  it  is  noticeable  that  the  word  '  all  '  is  not 
used  in  the  section  above  referred  to,  but  the  language 
used  is,  <  the  legislative  power,'  meaning  such  legislative 
power  as  may  be  necessary  or  appropriate  to  the  declared 

131 


602  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

purpose  of  the  people  in  framing  their  constitution  and 
conferring  their  powers  upon  the  various  departments  con- 
stituted for  the  sole  purpose  of  carrying  into  effect  their 
declared  purpose.  It  is  manifest  from  the  numerous 
express  restrictions  upon  the  legislative  will  found  in  the 
constitution  that  the  people  were  not  willing  to  entrust 
even  their  own  representatives  with  unlimited  legislative 
power,  but,  as  if  not  satisfied  with  these  numerous  express 
restrictions,  and  perhaps  fearing  that  some  important  right 
might  have  been  overlooked,  a  general  clause,  not  usually 
found  in  State  constitutions,  was  inserted,  apparently  de- 
signed to  cover  any  such  omissions,  for  in  section  41  of 
article  1  it  is  expressly  declared  that  « the  enumeration  of 
rights  in  this  constitution  shall  not  be  construed  to  impair 
or  deny  others  retained  by  the  people,  and  all  powers  not 
herein  delegated  remain  with  the  people.'  Now,  upon 
well-settled  principles  of  constitutional  construction  we 
are  not  at  liberty  to  disregard  this  clause,  but  must  give 
it  some  meaning  and  effect.  It  seems  to  us  that  the  true 
construction  of  this  clause  is  that,  while  there  are  many 
rights  which  are  expressly  reserved  to  the  people,  with 
which  the  legislature  are  forbidden  to  interfere,  there 
are  other  rights  reserved  to  the  people  not  expressly  but 
by  necessary  implication,  which  are  beyond  the  reach 
of  the  legislative  power,  unless  such  power  has  been 
expressly  delegated  to  the  legislative  department  of  the 
government.  These  views  have  not  only  the  support  of 
the  highest  authority  in  this  country,  as  may  be  seen  by 
reference  to  the  cases  of  Loan  Assn.  v.  Topeka,  20  Wall. 
(555,  and  Parkersburg  v.  Brown,  106  U.  S.  487,  1  Sup.  Ct. 
442,  but  have  been  distinctly  adopted  by  the  Supreme 
Court  of  the  State  in  Feldmann  v.  City  Council,  23  S.  C. 
57,  as  well  as  by  the  courts  of  Massachusetts  and  Maine, 
as  may  be  seen  by  reference  to  Allen  v.  Jay,  60  Me.  124, 
and  Lowell  v.  City  of  Boston,  111  Mass.  454;  and,  what  is 
§  131 


NATIONAL,    STATE    AND    MUNICIPAL   MONOPOLIES.         603 

more,  they  were  applied  to  the  vital  power  of  taxation  —  a 
power  absolutely  essential  to  the  very  existence  of  every 
government.  These  cases  substantially  hold  that,  although 
there  may  be  no  express  restrictions  contained  in  a  State 
constitution  forbidding  the  imposition  of  taxes  for  any 
other  purpose  than  a  public  purpose,  yet  such  a  restriction 
must  necessarily  be  implied  from  the  very  nature  of  civil 
government;  and  hence  the  legislative  department,  under 
the  general  power  of  taxation  conferred  upon  it,  cannot 
impose  any  tax  except  for  some  public  purpose.  Upon 
the  same  principle  it  seems  to  us  clear  that  any  act  of  the 
legislature  which  is  designed  to,  or  has  the  effect  of, 
embarking  the  State  in  any  trade  which  involves  the  pur- 
chase and  sale  of  any  article  of  commerce  for  profit,  is 
outside  and  altogether  beyond  the  legislative  power  con- 
ferred upon  the  general  assembly  by  the  constitution,  even 
though  there  may  be  no  express  provision  in  the  constitu- 
tion forbidding  such  an  exercise  of  legislative  power. 
Trade  is  not,  and  cannot  properly  be,  regarded  as  one  of 
the  functions  of  government.  On  the  contrary,  its  function 
is  to  protect  the  citizen  in  the  exercise  of  any  lawful 
employment,  the  right  to  which  is  guaranteed  to  the  citizen 
by  the  terms  of  the  constitution,  and  certainly  has  never 
been  delegated  to  any  department  of  the  government. 

"  We  do  not  deem  it  necessary  to  go  into  any  extended 
consideration  of  the  fearful  consequences  of  recognizing 
the  power  of  the  legislature  to  embark  the  State  in  any 
trade,  arising  from  the  hazards  of  all  business  of  that 
character,  or  to  comment  upon  the  danger  to  the  people  of 
the  monopoly  of  any  trade  by  the  State,  —  for  if  it  can 
monopolize  one  it  may  monopolize  any  or  all  other  trades 
or  employments,  —  although  it  is  permissible  for  a  court, 
when  called  upon  to  construe  an  act,  to  consider  its  effects 
and  consequences;  for  it  may  be  said  —  indeed,  has  been 
said  —  that  the  good  sense  and  patriotism  of  the  members 

§  131 


604  REGULATION    OF    TRADES    AND    OCCUPATIONS. 

of  the  general  assembly  may  be  safely  relied  upon  to  pro- 
tect the  people  from  such  apprehended  dangers." 

After  the  rendition  of  this  opinion  against  the  constitu- 
tionality of  the  dispensary  law,  a  change  in  the  personnel 
of  the  Supreme  Court  of  South  Carolina  occurred,  which 
resulted  in  producing  a  preponderance  of  judicial  opinion 
in  favor  of  the  constitutionality  of  the  law.  When  a  case 
came  before  the  court  again,  which  involved  this  question 
of  constitutionality  of  the  dispensary  law,  the  opinion  of 
the  court  in  McCullough  v.  Brown,  just  cited,  was  ex- 
pressly overruled,  and  the  constitutionality  of  the  law  was 
sustained.1  Judge  Gary,  in  delivering  the  opinion  of  the 
court,  said :  — 

"  Objection  is  made  as  to  the  constitutionality  of  the  act 
on  the  ground  that  it  creates  a  monopoly.  Those  inter- 
posing this  objection  likewise  assume1  that  it  is  not  a  police 
measure.  The  objection  is  fully  met  by  the  decision  of 
the  court  in  the  Slaughter-house  Cases,  supra,  in  which  the 
court  says :  *  That  wherever  the  legislature  has  the  right 
to  accomplish  a  certain  result,  and  that  result  is  best 
attained  by  means  of  a  corporation,  it  has  the  right  to 
create  such  a  corporation,  and  to  endow  it  with  the  power 
necessary  to  effect  the  desired  lawful  purpose,  seems  hardly 
to  admit  of  debate.'  Tied.  Lim.  318,  says  :  « If  it  is  law- 
ful for  the  State  to  prohibit  a  particular  business  alto- 
gether, or  to  make  a  government  monopoly  of  it,  the  pur- 
suit of  such  business  would,  if  permitted  to  any  one,  be  a 
privilege  or  franchise,  and  being  like  any  other  franchise, 
may  be  made  exclusive.  This  is  but  a  logical  consequence 
of  the  admission  that  the  State  has  the  power  to  prohibit  a 
trade  altogether.  Such  an  admission  is  fatal  to  a  resistance 
of  the  power  to  make  it  a  monopoly.'  The  doctrine  of 
*  monopoly  '  cannot  be  applied  to  a  State  in  exercising  its 
governmental  functions.  *  *  * 

1  State  ex  rel  George  v.  Aiken,  42  S.  C.  222. 
§  131 


NATIONAL,    STATE    AND    MUNICIPAL    MONOPOLIES.         605 

"  It  is  contended  that  the  foregoing  section  l  prevents  the 
legislature  from  embarking  the  State  in  a  commercial  enter- 
prise.    We  have  no  doubt  that  if  such  was  the  object  of 
the  act,  and   it  was  not  intended  as  a  police  measure,  it 
would  be  unconstitutional,  even  in  the  absence  of  section 
41,  art.   1.     As    we   have  said,  if  the  act  is  not  a  police 
measure,  it   is    unconstitutional.     It   is   quite   a  different 
thing,  however,  when  trade  is  simply  an  incident  to  a  police 
regulation.    Buying  and  selling  on  the  part  of  the  Federal, 
State,  and  municipal  governments  take  place  every  day, 
and  as  long  as  the  buying  and  selling  are  in  pursuance  of 
police  regulations  they  are  entirely  free  from  legal  objec- 
tion.   The  Federal  government  sells  liquor  and  other  articles 
that    have  been   seized  as  contraband.     Articles  are  pur- 
chased by  the  State  to  keep  up  the  penitentiary  and  asylum 
and  other  public  institutions  and  enterprises.     We   see  it 
buying  a  farm  to  utilize  the  convict  labor  of  the  State,  and 
selling  the  produce  made  on  the  farm.     Municipal  govern- 
ments have  the  right  to  buy  and  dispose  of  property  in  ad- 
ministering their  governmental  affairs.     The  very  distinc- 
tion for  which  we  contend  is    pointed  out  in  the  case  of 
Mauldin  v.  City  Council,  33  S.  C.  1 ;  11  S.  E.  434.     In  that 
case  the  court  showed  it  was  not  wrong  for  the  city  to  buy 
and  sell  for  a  public  purpose,  but  that  the  act  only  became 
illegal  when  it  was  for  a    private  purpose.     We  think  the 
case  was   properly  decided,  and  that  the  decision  rested 
upon  this  distinction.     The  case  of  Beebe  v.  State,   6  Ind. 
501,  was   upon   the  construction  of  a   statute  of  Indiana 
somewhat  similar  to  the  act  in  question,  and  is  relied  upon 
as  an  authority  to  sustain  the  proposition  that  the  State  can- 
not take  direct  control  and  management  of  the  liquor  traffic. 

i  §  41,  art.  I,  Constitution  of  S.  C.:  "The  enumeration  of  rights  in 
this  Constitution  shall  not  be  construed  to  impair  or  to  deny  others  re- 
tained  by  the  people,  and  all  powers  not  herein  delegated  remain  within 
the  people." 

§  131 


606  REGULATION    OF    TRADES    AND   OCCUPATIONS. 

In  that  case  the  court  uses  the  following  language :  *  The 
business  [the  management  and  sale  of  liquor]  was  at  and 
before  the  organization  of  the  government,  and  is  properly 
at  all  times,  a  private  pursuit  of  the  people,  as  much  so  as 
the  manufacture  and  sale  of  brooms,  tobacco,  clothes,  and 
the  dealing  in  tea  and  rice,  and  the  raising  of  potatoes.' 
(Italics  ours. )  This  case  is  in  conflict  with  the  distinction 
made  between  liquor  and  the  ordinary  commodities  of 
life.  *  *  * 

**  If  liquor  is  to  be  placed  on  the  same  footing  with  the 
articles  mentioned  in  the  Indiana  case,  then  that  decision 
was  right ;  but  if  there  is  that  distinction  for  which  we  con- 
tend, then  the  case  is  valueless  as  an  authority,  being  de- 
cided on  erroneous  principles.  The  principles  upon  which 
that  case  was  decided  would  have  forced  the  court  that  ren- 
dered it  to  have  declared  null  and  void  a  statute  entirely 
prohibiting  the  traffic  in  liquor,  although  there  is  no  longer 
any  doubt  as  to  the  constitutionality  of  such  statutes.  The 
case  of  Rippe  v.  Becker  (Minn.),  57  N.  W.  331,  is  also 
relied  upon  to  sustain  the  constitutional  objection  to  the 
act  of  1893.  The  title  of  the  act  construed  in  Rippe  v. 
Becker  was,  *  An  act  to  provide  for  the  purchase  of  a  site 
and  for  the  erection  of  a  State  elevator  or  warehouse  at  Du- 
luth  for  public  storage  of  grain.'  The  syllabus  of  the  case 
prepared  by  the  court  states :  '  The  police  power  of  the 
State  to  regulate  a  business  is  to  be  exercised  by  the  adop- 
tion of  rules  and  regulations  as  to  the  manner  in  which  it 
shall  be  conducted  by  others,  and  not  by  itself  engaging  in 
it.'  The  language  of  the  court  as  applying  to  that  case 
was  proper,  and  we  think  the  case  was  properly  decided  in 
the  light  of  the  distinction  between  liquor  and  the  ordinary 
commodities  of  life  which  we  have  pointed  out.  There 
was  nothing  in  the  business  dangerous  to  the  health,  mor- 
als, and  safety  of  the  people,  and  the  act  should  have  been 
declared  null  and  void." 
§  131 


NATIONAL,    STATE    AND    MUNICIPAL    MONOPOLIES.         607 

I  believe  the  latter  South  Carolina  case  to  be  sound  law.1 
But  the  reader  must  bear  in  mind  that  this  opinion  is  pre- 
dicated upon  the  proposition,  that  the  liquor  trade  is  so  in- 
herently injurious  to  society,  when  it  is  permitted  to  be  the 
object  of  private  enterprise,  as  that  the  State  is  for  that 
reason  justified  in  prohibiting  altogether  its  prosecution  by 
private  individuals  as  an  ordinary  calling.  This  I  do  not 
believe  to  be  the  case,  and  I  adhere  to  the  opinion  expressed 
in  the  preceding  section  2  that  all  laws,  which  prohibit 
altogether  the  private  manufacture  and  sale  of  intoxicating 
liquors,  are  unconstitutional  as  an  unjustifiable  interference 
with  the  liberty  of  the  individual  to  engage  in  any  lawful 
calling. 

A  case  in  the  Minnesota  Supreme  Court,  which  is  refer- 
red to  in  the  South  Carolina  cases  on  the  Dispensary  Law, 
as  aptly  illustrates  the  limitations  of  the  legislative  power 
to  convert  private  businesses  into  government  monopolies, 
as  do  the  Massachusetts  cases,  heretofore  referred  to  in 
the  present  section,  point  out  the  limitations  in  the  same 
direction  of  the  power  of  municipal  governments.8  The 
legislature  of  Minnesota  had  provided  for  the  erection  and 
maintenance  by  the  State  of  a  grain  elevator  at  Duluth. 
It  will  be  remembered  that  these  grain  elevators  have  been 
pronounced  by  the  United  States  Supreme  Court  and  by  the 
Court  of  Appeals  of  New  York,  to  be  virtual  monopolies, 
and  properly  subjected  to  the  police  regulation  of  rates  and 
charges.4 

The  intention  of  this  novel  legislation,  as  stated  in  sec- 
tion 4  of  the  Minnesota  act,  authorizing  the  establishment 

1  This  position  of  the  South  Carolina  court  has  been  recently  sus- 
tained by  a  decision  in  North  Carolina  in  which  it   was  held  that  State 
control  of  the  liquor  traffic  in  a  county  was  a  lawful  monopoly.     Guy  ». 
Commissioners  of  Cumberland  County,  122  N.  C.  471. 

2  §125  (§103  of  the  first  edition). 
8  Uippe  v.  Becker,  56  Minn.  100. 

*  See  ante,  §§  96,  97. 

§  131 


608  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

of  the  government  elevators,  is  as  follows :  it  being  the 
intention  of  this  act  to  prevent  monopolization  and  the 
unjust  control  of  the  markets  of  the  State  for  farm  prod- 
ucts. The  Supreme  Court  declared  the  act  to  be  uncon- 
stitutional and  said :  — 

**  The  keynote  to  the  object  of  the  law  is,  we  apprehend, 
to  be  found  in  the  last  clause  of  section  4  above  quoted  as 
to  the  intention  of  the  act;  and,  so  far  as  it  relates  to  the 
right  of  the  State,  under  the  police  power,  to  regulate  this 
business  the  position  of  defendant's  counsel  really  amounts 
to  this:  that  whenever  those  who  are  engaged  in  any  busi- 
ness which  is  affected  with  a  public  interest  and  hence  the 
subject  of  governmental  regulation,  do  not  furnish  the 
public  proper  and  reasonable  service,  the  State  may,  as  a 
means  of  regulating  the  business,  itself  engage  in  it,  and 
furnish  the  public  better  service  at  reasonable  rates,  or  by 
means  of  such  State  competition,  compel  others  to  do 
so.  *  *  *  The  police  power  of  the  State  to  regulate  a 
business  does  not  include  the  power  to  engage  in  carrying 
it  on.  Police  regulation  is  to  be  affected  by  restraints  upon 
a  business,  and  the  adoption  of  rules  and  regulations  as  to 
the  manner  in  which  it  shall  be  conducted." 

The  Supreme  Court  of  Minnesota  very  correctly  declares 
the  act  to  be  unconstitutional,  but  assigns  what  appears  to 
me  to  be  an  erroneous  reason  for  its  judgment,  so  far  as  it 
declares  that  the  police  power  does  not  include  the  power 
to  make  a  government  monopoly  of  a  business,  when  that 
is  in  the  estimation  of  the  government  the  only  effective 
measure  for  the  prevention  of  the  injuries  and  wrongs, 
which  the  public  suffer  from  the  prosecution  by  private  in- 
dividuals of  a  business  which  is  inherently  and  necessarily 
injurious  to  society,  when  it  is  left  open  to  private  enter- 
prise. But  the  business  of  storage  of  grain  in  elevators 
is  not  of  that  kind.  It  is  not  inherently  and  necessarily 
injurious  when  left  open  to  private  enterprise.  The  only 
§  131 


NATIONAL,    STATE    AND    MUNICIPAL    MONOPOLIES.         609 

danger  with  which  the  public  is  threatened  in  such  a  busi- 
ness, is  that  of  extortionate  charges  for  the  storage  of 
grain.  Police  regulation  of  the  maximum  charges  is  un- 
questionably an  ample  protection,  and  the  legislature  is 
not  justified  in  converting  such  a  business  into  a  govern- 
ment monopoly,  or  in  providing  for  the  engagement  of  the 
government  in  the  business,  in  competition  with  the  private 
grain  elevators. 

Before  concluding  this  discussion  of  the  power  of 
the  legislature  to  create  government  monopolies,  I 
have  one  more  reflection  to  make.  In  preceding  sec- 
tions x  I  have  set  forth  at  considerable  length  the  govern- 
mental efforts  to  suppress  trade  combinations,  and  the 
principles  of  constitutional  law,  which  limit  and  justify 
these  police  regulations.  In  other  preceding  sections2  I 
have  explained  how  the  constitutional  declarations,  of  the 
equality  of  all  men  before  the  law,  constrain  the  courts  in 
a  variety  of  cases  to  declare  unconstitutional  statutes, 
which  interfere  with  the  liberty  of  contract  of  the  indi- 
vidual. In  another  section  8  I  pointed  out  that  all  attempts 
to  suppress  and  prevent  combinations  in  restraint  of  trade 
must  necessarily  prove  futile,  as  long  as  the  statutes  of  the 
State  permit  the  creation  of  private  corporations,  for  the 
prosecution  of  businesses,  which  can  be  successfully  carried 
on  by  private  individuals  without  the  aid  of  a  charter  of 
incorporation.  The  grant  of  charters  of  incorporation 
in  such  cases  only  serves  to  intensify  the  natural  power 
which  the  capitalist  in  his  individual  capacity  posseses  over 
the  non-capitalist,  by  the  mere  possession  of  the  capital. 
I  advocate,  as  a  return  to  a  uniform  recognition  of 
the  constitutional  guaranty  of  equality  before  the  law,  the 
repeal  of  the  statutes  which  provide  for  the  creation 

1  §§  108,  110-113. 
3  §§  94,  96-106. 
•  §  111. 

89  §  131 


610  REGULATION   OF   TRADES   AND    OCCUPATIONS. 

of  private  corporations.  But  there  are,  undoubtedly, 
businesses,  which,  on  account  of  their  immense  pro- 
portions and  wide  scope,  cannot  be  successfully 
and  safely  conducted  by  private  capitalists,  with- 
out the  aid  of  a  charter  of  incorporation,  and 
where  the  business  is  not  at  all  dependent  upon  the 
grant  by  the  legislature  of  any  special  privilege  or  fran- 
chise, such  as  the  railroad  or  telegraph  company.  As 
possible  examples  of  that  kind  of  business,  may  be  men- 
tioned the  business  of  insurance  and  of  banking.1 

It  is  possible  for  the  banking  business  and  the  business 
of  all  kinds  of  insurance  other  than  life  to  be  successfully 
carried  on  by  private  enterprise  ;  it  is  absolutely  impossible 
on  account  of  the  long  duration  of  its  policies,  for  life 
insurance  to  be  so  conducted.  I  may  be  wrong  in  this  dis- 
tinction ;  I  do  not  care  to  be  insistent  upon  it.  But  if  it 
should  be  judicially  declared  to  be  impossible  for  these 
businesses  to  be  carried  on  by  private  capitalists  in  their 
individual  capacity;  and  that  incorporation  is  necessary 
to  their  successful  prosecution ;  I  insist  that  the  grant 
of  a  charter  of  incorporation  of  a  bank  or  of  an  insurance 
company  is  as  much  a  grant  of  a  special  privilege  or  fran- 
chise, in  violation  of  the  constitutional  guaranty  of  equal 
privileges  and  immunities,  as  is  the  grant  of  a  charter  to 
a  railroad  or  street  railway  company.  Assuming  it  to  be 
true  that  banking  and  insurance,  or  either  of  them,  cannot 
be  successfully  conducted  by  natural  persons  without  the 
aid  of  incorporation,  the  only  method  of  providing  for 
such  businesses,  which  is  consonant  with  the  democratic 
principles  of  equality,  is  by  their  conversion  into  govern- 
ment monopolies. 

But  I  do  not  desire  to  be  understood  as  justifying  the 
creation  of  a  government  monopoly  in  a  case,  in  which  the 

1  See  ante,  §  129. 
§  131 


NATIONAL,    STATE    AND    MUNICIPAL   MONOPOLIES.         611 

individual  cannot  in  his  individual  capacity  successfully  con- 
duct the  business  on  so  large  a  scale  as  it  is  now  being 
managed  under  a  charter  of  incorporation.  If  the  business 
can  be  successfully  conducted  by  a  private  individual  on  a 
smaller  scale,  and  with  a  reasonable  protection  to  parties 
having  dealings  with  him  —  according  to  the  principles  here 
advocated,  and  laid  down  in  adjudications  on  kindred  prop- 
ositions of  law,  —  that  business  cannot  be  converted  into  a 
government  monopoly,  without  infringing  the  constitutional 
right  of  the  individual  to  pursue  any  lawful  calling  he  may 
select.  The  demonstration  of  the  fact,  that  when  the  bus- 
iness is  conducted  on  a  larger  scale,  there  is  a  marked  sav- 
ing of  the  expense,  and  a  consequent  reduction  in  the  price 
to  the  consumer,  does  not  affect  the  constitutional  aspect  of 
the  question.  The  Supreme  Court  of  the  United  States,  in 
the  Trans-Missouri  Freight  Association  case,1  does  not  de- 
clare it  to  be  of  any  concern  to  the  government  that  the 
prices  of  products  should  be  reduced  at  the  expense  of  the 
liberty  of  the  individual  to  pursue  a  lawful  calling  ;  it 
asserts  the  contrary  proposition,  that  it  is  the  concern  of 
the  government,  which  is  manifested  by  the  legislation 
against  trusts  and  trade  combinations,  that  the  small  trades- 
man, manufacturer  and  artisan,  shall  not  be  driven  to  the 
wall,  overpowered  by  the  giant  combinations. 

The  application  of  these  principles  to  practical  politics  is 
very  likely  to  result  in  an  abuse  of  them.  The  student  of 
European  politics  meets  with  all  sorts  of  monopolies,  almost 
as  varied  as  they  were  in  France  under  the  ancient  regime, 
the  only  difference  being  that  the  general  government,  and 
not  the  privileged  classes,  own  the  monopolies.  There 
may  in  the  future  be  attempts  in  this  country  to  create 
monopolies  out  of  trades  and  occupations,  the  prosecution 
of  which  by  private  individuals  would  be  successful,  and 

1  166  U.  S.  290;  see  ante,  §  112 

§  131 


612  REGULATION   OF   TRADES    AND    OCCUPATIONS. 

would  not  necessarily  inflict  injury  upon  the  public.  But 
a  resort  to  the  courts  will  furnish  an  ample  remedy,  if  pub- 
lic opinion  has  not  grown  accustomed  to  a  disregard  of 
constitutional  limitations  and  of  the  rights  of  individuals. 
It  is  confidently  believed  that  the  exposition  in  this  chapter 
of  the  adjudications,  bearing  upon  the  constitutionality  of 
police  regulations  of  trades  and  occupations,  reveals  such  a 
clear  desire  on  the  part  of  the  courts  to  strengthen  the  con- 
stitutional limitations  upon  legislative  tyranny,  that  we 
can  look  with  assurance  to  the  judicial  veto  as  an  insuper- 
able barrier,  at  least  for  years  to  come,  to  the  establishment 
of  State  socialism. 
§  131 


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